The Honorable Bruce M. Van Sickle, United States District Judge for the

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District of North Dakota, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 96-3955

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

David Alban Mahler, *

*

Appellant. *

*

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Submitted: November 17, 1997

 Filed: April 1, 1998

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Before BEAM, HEANEY, and JOHN R. GIBSON, Circuit Judges.

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BEAM, Circuit Judge.

David Mahler appeals his conviction on four counts of drug-trafficking. He

asserts that the district court erred in denying his motion to suppress evidence and in 1

allowing an eleven-person jury to return a verdict. We affirm.
The record shows that the St. Louis Park Police Department, the Hopkins Police 2

Department, the Federal Bureau of Investigation, and the Airport Police Department

jointly investigated Mahler and Westby. Hopkins and St. Louis Park are suburbs of

Minneapolis. 

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I. BACKGROUND

David Mahler and his roommate, Richard Westby, conducted a significant drug

distribution operation from a one-bedroom apartment in St. Louis Park, Minnesota.

They sold cocaine, marijuana, and methamphetamine to persons who would resell the

drugs at a profit. Mahler and Westby kept a small inventory of the drugs at their

apartment and warehoused their remaining supply in three storage units at two different

storage facilities in the Minneapolis area. 

On March 25, 1995, an investigator with the Minneapolis-St. Paul Airport Police

Department (Airport Police), acting on a tip, questioned two suspects who had exited

a flight arriving from San Diego. The suspects consented to a search of the four large

suitcases that they were carrying. The suitcases contained twenty-six bricks of

marijuana which weighed approximately 115 pounds. The two drug couriers agreed

to cooperate with the police and deliver the drugs to the purchaser as planned. From

a nearby hotel, one of the couriers placed a telephone call to a number listed in

Mahler's name. The courier spoke with a person identified as "Richard." Within

minutes, Westby arrived at the hotel in a van. After Westby inspected the suitcases and

started carrying them toward the van, the police arrested him. The van contained an

invoice which indicated that it had been purchased with cash and that Mahler and

Westby were its co-owners. The invoice additionally listed the co-owners' address as

the St. Louis Park apartment that was leased under Mahler's name. 

On May 24, 1995, Detective Robert Dole, of the Hopkins Police Department,

obtained a search warrant for that apartment. The supporting affidavit revealed the 2
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following: that Westby had been arrested while transporting marijuana toward a van

which he and Mahler had paid for in cash; that a confidential informant described, with

specificity, drug transactions taking place at the apartment which Mahler and Westby

shared; that police surveillance observed what appeared to be two drug transactions

taking place at the apartment; and that Westby had deposited $78,718 in cash at

various New York City banks from 1993-1994. 

After he conducted surveillance on the small one-bedroom apartment, but before

he executed the search warrant, Detective Dole discovered that two storage units at a

St. Louis Park storage facility and another unit at a Minnetonka, Minnesota, storage

facility had been leased by either Mahler or Westby. At the St. Louis Park facility,

Mahler had leased unit #2217 and Westby had leased unit #6126. Mahler had also

leased unit #4104 at the Minnetonka facility. On May 30, 1995, the Airport Police

brought a narcotics certified canine drug detection team to the storage units. The

canine gave a positive indication for drugs at both storage units leased by Mahler and

a negative indication for the unit leased by Westby.

 

On May 30, 1995, Detective Dole obtained additional search warrants for each

of the storage facilities. The affidavits in support of these search warrants contained

the same information as the supporting affidavit for the apartment search warrant. The

affidavits additionally set forth the existence of the storage units, the use of the

narcotics certified canine team, the indications given by the canine at the storage units,

and the fact that Mahler had traveled with no luggage from Los Angeles to Minneapolis

on a ticket paid for in cash, with a return flight the following day. The affidavits did

not specifically set forth that Mahler and Westby had leased the storage units. The

police executed the warrants that day.

First, they searched Mahler's storage unit at the St. Louis Park facility. Inside,

they discovered a duffel bag containing ephedrine, which is a precursor chemical to

methamphetamine, a triple beam scale, a shotgun, and marijuana residue. Next, they
Westby failed to appear for a hearing on these charges and his whereabouts

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remain unknown.

The Honorable Michael J. Davis, United States District Judge for the District 4

of Minnesota adopting the Report and Recommendation of the Honorable John M.

Mason, United States Magistrate Judge for the District of Minnesota. Judge Davis

presided over this pre-trial motion and Judge Van Sickle conducted the trial.

Mahler does not challenge the admissibility of the evidence seized at the storage 5

unit leased by Westby or at the apartment they shared.

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searched Westby's storage unit at the same facility. That locker contained six suitcases;

each containing six bricks of marijuana. Next, the police searched Mahler's storage

unit at the Minnetonka facility. It contained ninety-three bricks of marijuana. Finally,

the police searched the apartment where they found approximately one and one-half

pounds of cocaine, two pounds of marijuana, $26,235 in cash, a 9-millimeter handgun,

drug notes, and various other items indicating that drugs were sold from the apartment.

The jury convicted Mahler on four counts of drug trafficking charges and one

count of using a firearm during the commission of a felony, in violation of 18 U.S.C.

§ 924(c). This court subsequently vacated Mahler's section 924(c) conviction. See

United States v. Mahler, No. 95-4225 (8th Cir. June 26, 1996).3

On appeal, Mahler raises two points of error. First, he asserts that the district

court erroneously denied his pre-trial motion to suppress the evidence seized at the

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storage units that he had leased because the search warrants were not supported by

probable cause. Second, he asserts that the district court erroneously permitted an

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eleven-person jury to return a verdict.
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II. DISCUSSION

A. Motion to Suppress

Mahler first contends that the district court should have suppressed the evidence

seized at the storage units that he had leased because the search warrants were not

supported by probable cause. We disagree.

We review for clear error a district court's decision not to suppress evidence

obtained during the execution of a search warrant. See United States v. Barr, 32 F.3d

1320, 1322 (8th Cir. 1994). We must give substantial deference to the issuing judge's

determination of probable cause and allow that determination to stand unless the issuing

judge lacked a substantial basis for concluding that probable cause existed. See Illinois

v. Gates, 462 U.S. 213, 236, 238-39 (1983). A warrant is supported by probable cause

if, "given all the circumstances set forth in the affidavit . . . there is a fair probability

that contraband or evidence of a crime will be found" in the place to be searched. Id.

at 238.

The supporting affidavits contained evidence of significant drug transactions

taking place at, or otherwise involving, Mahler's apartment, including evidence showing

the involvement of both Mahler and Westby. The affidavits additionally revealed the

existence of the storage units, the positive indications given by the canine, and the fact

that the canine team is narcotics certified. Because the canine's positive indications

were not the only evidence supporting a finding of probable cause, we find that the

absence of more detailed information about the reliability of the canine team did not

preclude a determination of probable cause. See United States v. Moore, 911 F.2d

140, 145 (8th Cir. 1990) (noting that positive indication for narcotics given by "certified

canine drug detection unit" supports a finding of probable cause); United States v.

Daniel, 982 F.2d 146, 151 (5th Cir. 1993) (same).
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The affidavits did not specify who had leased each unit. Nonetheless, the issuing

judge could reasonably infer that the units were leased by either of the suspects whose

drug activities were outlined in the other one and one-half pages of the affidavits.

Based on a totality of the circumstances, the district court did not commit clear error

in finding substantial basis for the issuing judge's conclusion that probable cause

existed to search the storage units.

B. Eleven-Person Jury

Mahler asserts that the district court erred in permitting an eleven-person jury to

return a verdict. Because Mahler's counsel expressly approved of the jury before it

began deliberations without the absent twelfth member, we find no reversible error.

In a pre-trial conference, Mahler, his counsel, and the government orally

consented to an eleven-person jury. At the conference, the following colloquy

occurred: 

[The Court:] What this amounts to, if you agree then, if we start out with

12 jurors and one gets sick or has to be excused, can you accept a

unanimous verdict of eleven, which is one less than 12?

[Mahler:] I don't have any trouble with that.

Tr. of Hr'g at 9 (September 11, 1995). Consequently, the district court did not empanel

any alternate jurors. 

When one juror failed to appear for the second day of the jury's deliberations,

the district court proposed recessing the jury for two hours. In the event that the juror's

whereabouts remained unknown, the district court further suggested that counsel

stipulate that "the jury shall go forward and consider and reach their verdict in [the
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juror's] absence." The record shows that counsel for the defendant and the government

expressly consented to this arrangement, but again did not reduce this stipulation to

writing. The juror's whereabouts remained unknown at 11:00 a.m. At that time, the

district court again asked counsel whether it was satisfactory to proceed with eleven

jurors. Both orally agreed on the record to the eleven-person jury.

The right to trial by a jury of twelve persons primarily protects the rights of the

accused. See Patton v. United States, 281 U.S. 276, 297 (1930). Accordingly, this

right may be waived by the defendant. See id. at 298. "[B]efore any waiver can

become effective, the consent of government counsel and the sanction of the court must

be had, in addition to the express and intelligent consent of the defendant." Id. at 312.

The Supreme Court has never mandated a written requirement for such waivers.

Nonetheless, Federal Rule of Criminal Procedure 23(b) provides that: 

Jury of Less Than Twelve. 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 jurors 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.

Fed. R. Crim. P. 23(b). Thus, under Rule 23(b), a jury of eleven may return a valid

verdict if the parties properly consent to the smaller jury or the judge finds it necessary,

after deliberations commence, to excuse a juror for just cause.

Mahler asserts that without a finding of just cause to excuse the absent juror, the

eleven-person verdict is invalid under either sentence of Rule 23(b). First, Mahler

asserts that his oral consent, even if valid, was conditioned upon a finding of just cause
In light of our finding, we need not address whether a defendant's oral consent, 6

appearing on the record, waives the right to a twelve person jury. See United States

v. Roby, 592 F.2d 406, 409 (8th Cir. 1979) (McMillian, J., dissenting) (stating that

express oral consent given by the defendant personally and appearing on the record

would effectuate a waiver).

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to excuse the juror. Next, Mahler asserts that, in the absence of proper consent, the

district court must have just cause to excuse the juror and authorize an eleven-person

verdict. See Fed. R. Crim. P. 23(b). Regardless of the substance of Mahler's assertion,

he cannot receive relief here because the asserted error was invited by Mahler's

counsel. 

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The doctrine of invited error applies when "the trial court announces its intention

to embark on a specific course of action and defense counsel specifically approves of

that course of action." See United States v. Ahmad, 974 F.2d 1163, 1165 (9th Cir.

1992) (applying invited error analysis to an assertion that the district court abused its

discretion in finding just cause to dismiss a juror under Rule 23(b)); see also United

States v. Martinez, 3 F.3d 1191, 1199 (8th Cir. 1993) (applying invited error analysis

to an evidentiary issue). The record shows that Mahler's counsel expressly consented

to the eleven-person jury on two separate occasions after the district court announced

its intention to continue the deliberations without the missing juror. Thus, the asserted

error was twice invited and, in light of Mahler's pre-trial oral consent to the elevenperson jury, it does not warrant reversal. See Ahmad, 974 F.2d at 1165.

After careful review, we find no merit in Mahler's remaining arguments.

III. CONCLUSION

For the foregoing reasons, we affirm the judgment of the district court.
A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.