FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 05-50608 Plaintiff-Appellee,

D.C. No.

v.  CR-04-00141-AHS

MICHAEL JOSEPH MURPHY,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Central District of California

Alicemarie H. Stotler, District Judge, Presiding

Argued and Submitted

July 28, 2006—Pasadena, California

Filed April 18, 2007

Before: John R. Gibson,* Pamela Ann Rymer, and

Richard R. Clifton, Circuit Judges.

Opinion by Judge Clifton;

Dissent by Judge Gibson

*The Honorable John R. Gibson, Senior United States Circuit Judge for

the Eighth Circuit, sitting by designation. 

4395
COUNSEL

Jason Dickstein (argued), Washington Aviation Group, PC

and the Law Offices of Jason A. Dickstein, Washington, D.C.,

for the defendant-appellant. 

Debra W. Yang, United States Attorney, Wayne R. Gross,

Assistant United States Attorney, and Thomas S. McConville

(argued), Assistant United States Attorney, Santa Ana, California, for the plaintiff-appellee. 

UNITED STATES v. MURPHY 4397
OPINION

CLIFTON, Circuit Judge: 

This case presents the question of whether a stipulation to

proceed with a jury of fewer than twelve members, permitted

under Federal Rule of Criminal Procedure 23(b)(2)(A), constitutes a violation of the requirement that a verdict be unanimous, under Federal Rule of Criminal Procedure 31, in

circumstances where there is some indication of a holdout

juror. We conclude that under the circumstances here, where

the defendant knowingly and intelligently stipulated to dismissing a juror and received a unanimous verdict by the

remaining eleven jurors, the district court did not abuse its

discretion in denying a new trial. 

I. Background

Appellant Michael Joseph Murphy was charged with violations of 18 U.S.C. § 287 and 18 U.S.C. § 1001 for making

false claims and statements in connection with a government

contract. After three days of trial, the jury began its deliberations on Friday, February 18, 2005. 

On Tuesday, February 22, the court received a note signed

by the jury foreperson that stated: “We have a dissenting point

of view with one juror that will have no possible position

change and requests no evidence or willing to participate.”

The parties agreed to the court’s proposed response, which

stated “The jury’s deliberations must be guided by the Court’s

instructions. For that reason, I’m submitting a copy to you for

your further consideration.” Later that same day the court

received a second jury note requesting the testimony of two

witnesses. The court reporter began to read back the testimony of those witnesses to the jury. The court adjourned that

afternoon before the testimony had been completely reread. 

4398 UNITED STATES v. MURPHY
The following morning, before the rereading of the testimony resumed, the jury indicated to the clerk that it wanted

to confer further. At 9:27 a.m. the court received a third jury

note, which read, in the less than perfect form common in

such notes: “A juror is not willing to deliberate[,] not open to

any additional information[,] her opinion is firm and says it

will not change. We are working on it = Please give us direction.” After receiving this note, the parties agreed to stipulate

to the removal from the jury of the one member described as

not deliberating, pursuant to Federal Rule of Criminal Procedure 23(b)(2)(A),1

 and to proceed with the remaining eleven

jurors. The court asked Murphy directly whether the stipulation was his wish after conferring with counsel about the matter, and Murphy responded that it was. The court accepted the

stipulation, finding that “there is reason, certainly to do so in

light of the compunctions, which is essentially more than once

without a refusal to deliberate,” and charged the clerk to enter

the jury room and dismiss the juror in question. The court

then stood in recess. 

At 10:16 a.m., the court resumed session, and updated the

parties as to what had occurred since the recess: 

After the last session of the court, the clerk scurried

out to discharge the juror who hasn’t deliberated.

The juror insisted on handing a note to a clerk. The

juror who was discharged wrote on something which

is a note which I have not read. And then I received

. . . a note from the jury that they have come to a verdict. And then I have . . . a handwritten stipulation

that counsel put together . . . [stipulating] “to the

removal of the one juror who is not deliberating as

1Under Federal Rule of Criminal Procedure 23(b)(2)(A): “At any time

before the verdict, the parties may, with the court’s approval, stipulate in

writing that . . . the jury may consist of fewer than 12 persons[.]” 

UNITED STATES v. MURPHY 4399
noted in jury notes one and three, pursuant to federal

criminal procedure [Rule] 23B. . . .”

2

So I have a verdict. I have a stipulation . . . and

I have the juror’s note which I have not read and I

will read to you now. 

The court read the excused juror note, which was timed at

9:52 a.m., as stating: 

“After listening to the full . . . [testimony,] and after

listening to the transcript and given the instructions

we have received, I can’t find the defendant guilty

beyond a reasonable doubt. If I were to change my

vote, it wouldn’t be what my conscience is telling

me is right. At worst this is negligence. I’m not convinced, based on all available information, the defendant is guilty beyond a reasonable doubt. That is not

reasonable to me.” 

That is the best [the court] can make of [the

juror’s] note to us.

The court then invited the parties to comment. Realizing that

the juror previously described as refusing to deliberate was a

holdout juror refusing to vote for conviction, defense counsel

moved for a mistrial based, as the court put it, “upon what is

essentially being characterized as inaccurate information in

jury notes one and three,” the notes that had described that

juror as refusing to deliberate. 

The court denied Murphy’s motion for a mistrial. It

2The exact words of the written stipulation filed by the court were

“After oral discussion and stipulation on the record before the court, the

government [and] D[efendant] hereby stipulate in writing to the removal

of the one juror who is not deliberating as noted in jury notes one [and]

three, pursuant to F[ederal] Rule [of] Crim[inal] Pr[ocedure] 23(b).” 

4400 UNITED STATES v. MURPHY
explained that “there is no doubt [that] had the juror who was

discharged pursuant to the stipulation not essentially insisted

on giving the note to the clerk, none of us would know, really,

what she, juror number five, had to say about the point.” The

court then summoned the jury panel, reduced in size at that

point to eleven members, and received the jury’s verdict,

which held Murphy guilty on both counts by votes of eleven

to zero. 

Murphy later filed a timely motion for a new trial under

Federal Rule of Criminal Procedure 33,3 arguing that the “interest of justice” required that the court vacate the judgment.

Attached to the motion was a declaration from the dismissed

juror denying that she had refused to deliberate. The court

denied the motion and subsequently sentenced Murphy to

imprisonment for twenty-four months. Murphy appealed. 

II. Discussion 

The district court’s denial of a motion for new trial based

on juror misconduct is reviewed for abuse of discretion, as is

the court’s decision to excuse a juror during deliberations.

United States v. Saya, 247 F.3d 929, 935 (9th Cir. 2001);

United States v. Egbuniwe, 969 F.2d 757, 760-61 (9th Cir.

1992). 

[1] Whether the dismissal of the juror in this case was error,

such that Murphy should be entitled to a new trial, is a question framed primarily by two Rules of Criminal Procedure:

Rule 23(b)(2)(A), which provides that at any time before the

verdict, the parties may, with the court’s approval, stipulate in

writing that the jury may consist of fewer than twelve persons; and Rule 31, which states without qualification that the

jury verdict must be unanimous. Unlike jury size under Rule

3Federal Rule of Criminal Procedure 33(a) provides: “Upon the defendant’s motion, the court may vacate any judgment and grant a new trial

if the interest of justice so requires.” 

UNITED STATES v. MURPHY 4401
23, Rule 31’s requirement for unanimity in the verdict may

not be waived. United States v. Lopez, 581 F.2d 1338, 1340-

41 (9th Cir. 1978). 

[2] This court has not previously addressed a scenario

exactly like the one at issue here, but this and other courts

have dealt with similar situations and have interpreted Rule

23(b) to allow the parties to stipulate to removing a juror and

gamble on the effect that removal will have on the verdict, as

long as that verdict is unanimous on the part of the remaining

jurors. In United States v. Vega, 447 F.2d 698, 699-701 (2nd

Cir. 1971), for example, the Second Circuit evaluated jury

deliberations that followed a course very similar to that in the

present case. During the first few days of deliberations, the

court received two notes from the jury indicating that they

could not come to an agreement or final decision, to which the

court responded by urging the jury to try to reach a decision.

Id. at 699-700. A third note was received, reading “Your

Honor. I am the primary holdout. I cannot change my opinion

in good conscience and feel that to do so under pressure

would violate my oath as a juror. I respectfully request that

the jury be dismissed. Ralph Hoag.” Id. at 700. After reading

the message to counsel, the court said, “You have one guy

holding out. I don’t know which way he is. Do you want to

accept a jury verdict of 11. I don’t know which way they

stand.” Id. Defense counsel conferred with the defendant and

his wife, and then reported to the court, “We will only accept

a unanimous verdict. . . . Let’s see if we can get a jury of 11.”

Id. When asked in open court for confirmation, defense counsel advised his client as follows: “I suggest you do it. You are

not going to get a better trial. I am telling you right now.” Id.

After the defense confirmed its assent, Mr. Hoag was

excused, and the jury continued deliberations and thereafter

returned a guilty verdict. Id. at 700-01. 

On appeal, the defendant argued that he had a statutory and

constitutional right to a unanimous verdict which could not be

waived. Id. at 701. The Vega court concluded “beyond perad4402 UNITED STATES v. MURPHY
venture” that the “defendant was represented by competent

counsel” who

during the selection of the jury and during the trial

had an opportunity to select and appraise the jurors

selected as best qualified to react favorably to the

cause of his client. When the “holdout” crisis arose,

the Court gave counsel every opportunity to exercise

his courtroom judgment as to further proceedings.

Counsel conferred with defendant . . . . Counsel was

unwilling to accept less than a unanimous verdict but

definitely was willing to accept a jury of 11. And, as

measured against some other jury on a second trial,

it was obviously his considered judgment that in

courtroom parlance the jury “looked good” to him.

. . . 

The many cases and law review articles cited upon

the subject of “Waiver of Jury Unanimity” are not

applicable to the facts here presented. The defendant

here did not waive . . . his right to a unanimous verdict. He did have a unanimous verdict. His waiver,

knowingly and advisedly given, was of his right to

a jury of 12. . . . Rule 23(b) of the Federal Rules of

Criminal Procedure . . . give[s] to the parties the

right to stipulate to a jury of less than 12, at any time

before verdict. For this Court to hold otherwise

would be to deprive a defendant of the opportunity

to follow the advice of counsel of his own choice in

making a critical decision. Defendant and his counsel probably believed that he was going to obtain a

favorable decision from that particular jury and upon

his agreed-upon jury of 11 he was willing to “gamble.” No statutory or constitutional error can be

found in his exercise of these rights. 

Id. 

UNITED STATES v. MURPHY 4403
[3] Though the parties may agree to a proceeding with a

jury of less than twelve under Rule 23(b) in a situation like

that of Vega, they may not agree to receiving a nonunanimous verdict. Fed. R. Crim. P. 31; Lopez, 581 F.2d at

1340. The First Preliminary Draft of Rule 31 did provide “that

a waiver of jury unanimity could be made in the same manner

as a waiver of jury trial or of a jury of twelve may be made

under present [R]ule 23(a) or (b).”

4 Lopez, 581 F.2d at 1341.

The waiver provision was criticized as not giving sufficient

protection to the defendant, however, and “was deleted from

the next preliminary draft of [R]ule 31 and from the [R]ule as

enacted.” Id. at 1341 & n.1. In applying Rule 31 to cases in

which the parties attempted to avoid a mistrial by agreeing to

waive jury unanimity, courts have distinguished situations

like that of Vega in which all remaining jurors voted unanimously after one or more jurors were dismissed. That distinction applies to this case as well. 

In Lopez, after the jury had informed the court three times

that it was deadlocked and the court told the parties that it

intended to discharge the jury, defense counsel informed the

court that he wished to waive the right to a unanimous verdict

and that the vote of ten jurors would be acceptable. 581 F.2d

at 1340. A jury poll following the guilty verdict revealed that

the defendant was found guilty by a vote of ten to two. Id.

This court reversed the conviction, holding that the right to a

unanimous verdict cannot be waived. Id. 

Rejecting the government’s argument that the defendant

had simply agreed to accept a unanimous verdict of a tenperson jury, we distinguished Vega on the grounds that

“[d]efense counsel offered ‘to waive our right to a unanimous

verdict.’ The jury remained as a body of twelve throughout its

4As the Lopez court noted, “Rule 29(a) of the First Preliminary Draft

(1943) provided in pertinent part: ‘A verdict shall be unanimous, but upon

written stipulation of the parties approved by the court it may be by a

stated majority of the jurors.’ (emphasis supplied).” 581 F.2d at 1341 n.1.

4404 UNITED STATES v. MURPHY
deliberations and returned a verdict of ‘ten guilty and two not

guilty’ to each of the counts charged.” Id. at 1342; see United

States v. Pachay, 711 F.2d 488 (2d Cir. 1983) (reversing a

conviction rendered “on an 11 to 1 basis,” following defendant’s waiver of his “right to have a unanimous verdict of 12

jurors,” and distinguishing Vega on the grounds that in

Pachay, “the jury that returned the verdict was not a jury of

11 that deliberated as a group of 11 and returned a unanimous

verdict, it was a jury of 12 that returned a non-unanimous verdict.”); United States v. Scalzitti, 578 F.2d 507, 511-13 (3d

Cir. 1978) (reversing a guilty verdict returned upon a vote of

eleven to one, distinguishing the case from Vega because all

twelve jurors participated in the deliberations at all times,

voted on all counts, returned the verdicts, and were polled

afterwards); see also United States v. Smedes, 760 F.2d 109,

112-13 (6th Cir. 1985) (focusing on “whether the verdict

below was the unanimous verdict of an 11 person jury or the

non-unanimous verdict of a 12 person jury,” and concluding

based on Vega, Scalzitti and Pachay that the jury verdict was

not unanimous because the jury remained a body of twelve

throughout its deliberations, and the jury was never required

to reach a verdict in which all deliberating members concurred). 

[4] Murphy’s stipulation in this case did not amount to a

waiver of jury unanimity, but rather fit squarely within the

framework of Rule 23(b). See Vega, 477 F.2d at 701. In

United States v. Reyes, 603 F.2d 69 (9th Cir. 1979), our court

recognized the risk to the defendant of stipulating to a jury of

less than twelve and noted that the rules provided for such a

strategic gamble. Although we held that the oral stipulation in

that case was not sufficient to waive the right to a jury of

twelve, we explained that “[w]e do not intimate that a trial

judge must explain to the defendant the strategic ramifications

of the decision whether to accept a jury of less than twelve.

Rather, his role should be to determine that the defendant

knowingly and intelligently consents to the stipulation.” Id. at

71-72, 72; see also United States v. Josefik, 753 F.2d 585, 588

UNITED STATES v. MURPHY 4405
(7th Cir. 1985) (“If the defendant would prefer to take his

chances with the jury in its reconstituted form rather than

undergo the expense and uncertainty of a new trial, why

should he not be allowed to?”). 

In the present case, Murphy never attempted to waive his

right to a unanimous verdict, nor did the court understand his

stipulation as such an attempt. Cf. Smedes, 760 F.2d at 113.

Neither did Murphy in fact waive unanimity; unlike in Lopez,

Scalzitti, Smedes and Pachay, here the verdict was returned

by a unanimous jury of eleven. See Vega, 447 F.2d at 700-01.

[5] It is significant that the dismissal of the juror here was

based upon a stipulation of the parties, under Rule

23(b)(2)(A). Without a stipulation of the parties, the court

may excuse a juror on its own under other provisions of Rule

23, in particular subsections (b)(2)(B) or (b)(3),5 but it can do

so only for “good cause.” We have held that “good cause” for

dismissal of a juror cannot be based on the juror’s views on

the merits of the case, and that when there is “considerable

evidence to suggest that the other jurors’ frustrations with her

derived primarily from the fact that she held a position opposite to theirs on the merits of the case,” dismissal of that juror

cannot be sustained as being for “good cause.” United States

v. Symington, 195 F.3d 1080, 1085-88, 1088 (9th Cir. 1999).

In contrast, there is no “good cause” requirement where the

parties themselves stipulate to proceed with eleven jurors,

under Rule 23(b)(2)(A), as in this case. Such a requirement

was clearly left out of Rule 23(b)(2)(A) by its drafters, and it

is not appropriate for us to add it. Symington does not apply

5Rule 23(b)(2)(B) states: “At any time before the verdict, the parties

may, with the court’s approval, stipulate in writing that: . . . a jury of fewer

than 12 persons may return a verdict if the court finds it necessary to

excuse a juror for good cause after the trial begins.” Rule 23(b)(3) provides that “[a]fter the jury has retired to deliberate, the court may permit

a jury of 11 persons to return a verdict, even without a stipulation by the

parties, if the court finds good cause to excuse a juror.” 

4406 UNITED STATES v. MURPHY
here. The district court did not err in denying the motion for

a new trial. 

III. Conclusion

We find no error in the district court’s denial of a new trial

here, where the parties stipulated to proceeding with a jury of

less than twelve and received a unanimous verdict, albeit from

a jury of only eleven members. That it was subsequently

revealed that the juror was a holdout in favor of acquittal does

not change that. On the advice of counsel, Murphy made a

decision which did not turn out as he had hoped, but it was

one that he was free to make and be held to under the Federal

Rules of Criminal Procedure. Accordingly, we affirm his conviction. 

AFFIRMED. 

GIBSON, Circuit Judge, dissenting: 

I respectfully dissent and conclude that the proper course is

to reverse the conviction and remand for a new trial. When

the three notes the jury submitted to the district court during

its deliberations are read together, I am convinced that they

demonstrate a reasonable possibility that the holdout juror

entertained doubts about the merits of the government’s case.

Her dismissal thus violated Murphy’s non-waivable Sixth

Amendment right to a unanimous verdict. 

While I recognize that our review is for abuse of discretion,

we also have held that “[t]he district court’s discretion in this

area is not unbounded.” United States v. Symington 195 F.3d

1080, 1085 (9th Cir. 1999). Indeed, “a court may not dismiss

a juror during deliberations if the request for discharge stems

from doubts the juror harbors about the sufficiency of the evidence.” Id. (quoting United States v. Brown, 823 F.2d 591,

UNITED STATES v. MURPHY 4407
596 (D.C. Cir. 1987)). Symington reasoned that removing a

juror “because he is unpersuaded by the Government’s case

is to deny the defendant his right to a unanimous verdict.” Id.

(quoting United States v. Thomas, 116 F.3d 606, 621 (2d Cir.

1997)). If a court could discharge a juror on this basis, “then

the right to a unanimous verdict would be illusory.” Brown,

823 F.2d at 596; see also Sanders v. Lamarque, 357 F.3d 943

(9th Cir. 2004) (habeas relief affirmed on same theory where

state trial court had dismissed the only juror who was holding

out in favor of acquittal). The right to a unanimous verdict is

so important that, under Federal Rule of Criminal Procedure

31, it cannot be waived. United States v. Lopez, 581 F.2d

1338, 1340 (9th Cir. 1978). 

I conclude that the three notes from Murphy’s jury demonstrate that this case falls within the prohibition in Symington

that, “if the record evidence discloses any reasonable possibility that the impetus for a juror’s dismissal stems from the

juror’s views on the merits of the case, the court must not dismiss the juror.” 195 F.3d at 1087. By referring to “a dissenting point of view with one juror,” the first note raises an

inference that one juror had an opinion on the merits of the

case that was contrary to the other eleven jurors’ view. In its

second note, after its members had been re-instructed, the jury

asked to review part of the evidence, indicating an attempt to

continue deliberations. An 11-1 split was all but confirmed

the next morning when the third jury note came, stating that

one juror was “not willing to deliberate,” “not open to any

additional information,” with an “opinion” that was “firm”

and would not change, but also stating that the jury was

“working on it.” Viewed in isolation, the third note could suggest that the holdout was uncooperative in the deliberative

process. The parties thought so at the time, as their stipulation

agreed to dismissal “of the one juror who is not deliberating.”

Ordinarily, this refusal would provide good cause for dismissal. Perez v. Marshall, 119 F.3d 1422, 1427 (9th Cir.

1997). Taken together, however, the notes certainly demonstrate that the dismissed juror had an opinion on the case that

4408 UNITED STATES v. MURPHY
differed from all the other jurors’ view. The record does not

allow us to determine whether she actually refused to deliberate or whether her frustrated fellow jurors merely thought she

was refusing. See Symington, 195 F.3d at 1086-87. Under

these circumstances, I conclude that the notes disclosed a reasonable possibility that the removal of the holdout juror

stemmed from her views on the merits of the case in violation

of Murphy’s right to a unanimous verdict. 

The court today concludes that Symington has no bearing

on this case because the juror was dismissed by the parties’

stipulation under Federal Rule of Criminal Procedure

23(b)(2)(A), rather than for good cause under Rule

23(b)(2)(B) or (b)(3). First, I observe that neither the stipulation itself nor the parties’ oral statements to the district court

specified which subsection of Rule 23(b) authorized the

juror’s removal. In any event, the court’s distinction misses

the mark because the plain language of Rule 23(b)(2)(A) only

authorizes the parties to stipulate—subject to the court’s

approval—that “the jury may consist of fewer than 12 persons”; it does not give them free rein to agree among themselves that a specific juror will be removed. The decision to

remove a juror is for the district court, which must find “good

cause” for dismissal, under the plain language of Rule

23(b)(2)(B) or (b)(3). Moreover, even if Rule 23 allows parties to agree to remove a juror without “good cause,” Rule 31

prohibits a defendant from waiving his right to have his guilt

determined by a unanimous jury verdict. See Lopez, 581 F.2d

at 1340. Where there is a reasonable possibility that the dismissal of a juror stemmed from her views on the merits of the

case, this amounts to a violation of the unanimity requirement, Symington, 195 F.3d at 1085, and Rule 31 invalidates

the remaining jurors’ verdict. 

The court points out that a defendant is free to agree to a

unanimous verdict of a jury of eleven, likening this case to

United States v. Vega, 447 F.2d 698 (2d Cir. 1971). I am

unable to agree that Murphy’s stipulation “to the removal of

UNITED STATES v. MURPHY 4409
the one juror who is not deliberating” was such an agreement.

In Vega, the record unambiguously showed that the defendant

was “unwilling to accept less than a unanimous verdict,” id.

at 701, where the defendant agreed to the dismissal of the

“primary hold-out” juror on the advice of experienced counsel

who expressly insisted upon a unanimous verdict by a jury of

eleven. Id. at 698-99. Here, neither the court nor Murphy’s

counsel, who both remarked that they had never before proceeded this way, even mentioned Murphy’s non-waivable

right to a unanimous verdict. More fundamentally, whether or

not a defendant has experienced counsel who formally

invokes the right to a unanimous verdict when he agrees to

dismiss a juror who is holding out on the merits of the case,

that agreement achieves the same result that a prohibited

waiver of unanimity would achieve. To the extent the Second

Circuit’s approach in Vega holds otherwise, it is inconsistent

with the unanimity requirement of Rule 31 as construed by

this circuit in Symington. 

I believe that Rule 31 precluded Murphy from acceding to

a reduction in jury size to remove the holdout juror where

there was a reasonable possibility that she was holding out on

the merits of the case. Thus, I dissent. 

4410 UNITED STATES v. MURPHY