PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 02-4194

FRANCISCO CURBELO, a/k/a Murando,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 02-4247

FRANCISCO CURBELO, a/k/a Murando,

Defendant-Appellant. 

Appeals from the United States District Court

for the Western District of North Carolina, at Charlotte.

Graham C. Mullen, Chief District Judge.

(CR-99-109-MU)

Argued: April 3, 2003

Decided: September 11, 2003

Before WILKINS, Chief Judge, and MOTZ and

KING, Circuit Judges.

Vacated and remanded by published opinion. Judge King wrote the

majority opinion, in which Judge Motz joined. Chief Judge Wilkins

wrote a dissenting opinion. 
COUNSEL

ARGUED: Lisa S. Costner, LISA S. COSTNER, P.A., WinstonSalem, North Carolina, for Appellant. Gretchen C.F. Shappert,

OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North

Carolina, for Appellee. 

OPINION

KING, Circuit Judge: 

On July 13, 2001, an eleven-person jury convicted Francisco Curbelo of multiple counts related to a drug distribution ring that operated out of Charlotte, North Carolina. Curbelo has asserted several

possible grounds for reversal, including the district court’s decision to

proceed, over his objection, with eleven jurors. The Government concedes that the court erred in proceeding with an eleven-person jury,

but it asserts that the error was harmless and that Curbelo’s convictions should therefore be affirmed. Every court to have addressed the

question has held to the contrary, and we decline to deviate from this

consensus. Thus, we vacate Curbelo’s convictions and remand for a

new trial, without reaching his other assertions of error. 

I.

On July 13, 1999, a grand jury in the Western District of North

Carolina returned its initial indictment against Curbelo, charging him

with multiple drug and firearms violations. A superseding indictment

was returned on February 6, 2001, and it serves as the basis for his

convictions. The superseding indictment alleges that Curbelo and others engaged in a drug conspiracy between January 1996 and June

1999. Count One of the superseding indictment charged Curbelo with

a controlled substances conspiracy, in violation of 21 U.S.C. § 846;

Counts Two, Four, Five, Seven, Nine, and Eleven charged him with

possession with intent to distribute cocaine base, in contravention of

21 U.S.C. § 841; and Counts Three, Six, Eight, Ten and Twelve

charged him with possession of firearms in relation to drug trafficking

offenses, in violation of 18 U.S.C. § 924(c). 

2 UNITED STATES v. CURBELO
On July 9, 2001, a jury of twelve was impaneled for Curbelo’s trial.1

The jurors were sworn shortly after 4 o’clock that afternoon, and

counsel for both sides then presented their opening statements. The

Government then called its first and principal witness, an alleged coconspirator, Thurnell Williams. At approximately 5:00 p.m., the trial

was adjourned for the day, resuming the next morning around 9:30.

At about 5 o’clock on the afternoon of July 10 — after Williams had

completed his direct testimony, but not his cross-examination — court

was adjourned early because of an air conditioning problem in the

courthouse. 

On the morning of July 11, 2001, before the start of the third day

of what would be a five-day trial, the court informed the parties that

"[o]ne of our jurors has called in sick and will have to be excused."

In response, the prosecution suggested that the parties stipulate to proceeding with only eleven jurors. Although Curbelo declined to so

stipulate, the court nevertheless announced: 

It appears that the Court finds it necessary to excuse one

juror for just case [sic] after the trial commences. [The

juror’s] father having called in and reported she’s suffering

from irritable bowel syndrome and is totally unable to function. She has been instructed to report to court with a doctor’s certificate after she recovers from whatever this is. But

I believe the Court has discretion to proceed with 11 absent

the stipulation, and we will proceed. 

Thus, the court ruled, over Curbelo’s objection, that his trial should

proceed with eleven jurors, even though the trial was still in its infant

stages — with the first witness still on the stand. 

That witness, Thurnell Williams, provided a good deal of the evidence against Curbelo. Williams, who supported himself by selling

crack, testified that on several occasions, from late 1996 through June

1999, he purchased illegal narcotics from Curbelo. Around the end of

1998 or the beginning of 1999, Williams stopped dealing with Curbelo because he owed and could not repay Curbelo $12,000, appar1The court did not impanel any alternate jurors for Curbelo’s trial. 

UNITED STATES v. CURBELO 3
ently for illegal drugs. Later in 1999, when law enforcement agents

"repeatedly" told Williams that he was "a target of a federal investigation," he agreed to "assist the government and become an informant."

Working with the agents, Williams started dealing with Curbelo

again. Because Curbelo did not speak much English, various people,

including a man named Jose, helped Williams negotiate with Curbelo.

According to Williams, the purchases often took place in Curbelo’s

phone store, with Jose’s translation and assistance. (Jose worked for

Curbelo at the store.) Further, Williams testified that Curbelo kept a

microwave and firearms in the back of the store, where he sometimes

microwaved the cocaine into crack. During several of his interactions

with Curbelo, Williams wore a wire and a video camera; the Government played these tapes, and provided photographs and transcripts of

these meetings to the jurors. 

Williams acknowledged that during the 1990s he was convicted

and imprisoned in Florida for assault, trafficking in cocaine and possession of a firearm during the commission of a felony, and that in

July 1999 (after he had begun work for law enforcement) he was convicted of theft and possession of a firearm. On cross-examination,

defense counsel asked Williams about (1) his failure to mention Curbelo’s possession of guns in his initial reports to police; (2) a confidential informant’s statement that contradicted a portion of

Williams’s testimony; and (3) an allegation that Williams had purchased a cellular phone from Curbelo’s store and that Williams’s

unpaid debt was actually owed in connection with that purchase,

rather than for illegal drugs. 

Regarding his interactions with Curbelo, Williams admitted that on

multiple occasions Curbelo explicitly refused to provide him with any

cocaine, stating that he only had access to marijuana. Williams also

acknowledged that Jose actually "handed" him "the drugs" every time

he purchased them while working with law enforcement officers. On

the first such occasion, June 15, 1999, Jose told him that Curbelo

would not be there and to "talk to him [Jose]." The next day when

Williams called, Curbelo again was away from the store, and Williams asked Jose for cocaine; in paying for the cocaine, Williams

attempted to hand the money to Curbelo (as instructed by the agents),

but Jose took the money and counted it himself. Williams also agreed

that the "other times that [he had] s[aid] [he] saw Mr. Curbelo cook4 UNITED STATES v. CURBELO
ing cocaine or the other times that [he] [said] [he] dealt with Mr. Curbelo, none of that is actually documented on tape or a transcript or

audiotape or anything like that." And, "[t]here is no physical evidence

of any of those transactions at all." 

Six other alleged drug dealers or co-conspirators testified more

briefly; most were imprisoned and testified under plea agreements.

On direct examination, they corroborated various aspects of Williams’s testimony; on cross-examination they contradicted themselves

and each other on some issues. For example, one of the other witnesses testified in detail that, with Williams’s knowledge and encouragement, he had robbed Curbelo’s store and kidnaped Curbelo’s

girlfriend, Wendy. However, when Williams testified, he had denied

knowing anything about the robbery or kidnaping. 

In addition, two Government agents testified;2 they related their

conversations with Williams and observations of Curbelo. They

acknowledged that no law enforcement officers accompanied Williams into Curbelo’s store, that other than what was shown on video,

they could not see what was happening in the store, that the quality

of some of the video was "poor," and that the video did not "show

who was actually transferring the drugs." Furthermore, they admitted

that on the tapes, Williams’s references to drugs ("ounces") were only

made when he was talking to Jose, and that when he talked about paying down his debt to Curbelo, he "never ma[de] a reference to drugs."

Finally, they conceded that Williams had not been charged with

Wendy’s kidnaping, or the robbery of Curbelo’s store, or his drug

dealing in North Carolina prior to his cooperation with law enforcement authorities, or his possession of a firearm by a convicted felon.

Curbelo took the stand in his own defense and testified through an

interpreter. According to Curbelo, in January 1999, Williams started

coming to Curbelo’s recently opened store to look at some of the

2The Government also presented the testimony of an interpreter, who

reviewed the transcripts of the tapes prepared for the jury; the interpreter

testified that there were some omissions in the transcripts, but that they

were "well over 95 percent correct." He acknowledged that the tapes

were noisy and that it was "difficult to maintain whom is talking to

whom." 

UNITED STATES v. CURBELO 5
phones. Williams was "very insistent about drugs," "always telling

[Curbelo] that he knew people in New York [who] had drug sources."

Curbelo, however, denied ever selling drugs to Williams. Curbelo’s

lawyer asked Curbelo about one of the tapes on which it appeared that

Curbelo was saying "kilo." Curbelo explained that the police did not

respond after the robbery of his store, that he suspected Williams, and

that he used the word "kilo" in an effort to set a trap for Williams to

come back to the store and try to rob it again. He said that he later

found out that Jose did give Williams drugs, but that he and Jose had

only talked about "a pretend simulated drug business to try to trap"

Williams and obtain evidence on him. Curbelo also testified that it

was "impossible" that Williams saw him cooking crack cocaine in a

microwave oven in the back of the store, because "Wendy was scared

to death" of Williams and he and Wendy "would never have him go

past the counter." 

Curbelo acknowledged that he knew many of the witnesses who

testified but denied that he dealt drugs with any of them. He testified

that one of his alleged co-conspirators told him in the holding cell that

his testimony against Curbelo "was nothing personal against [Curbelo], but he just wanted to get free," and that "they were going to

give him his freedom for coming here and lying in his testimony."

Curbelo also maintained that the tapes played to the jury were not

accurate and had been edited and "tampered with." 

The eleven-person jury returned its verdict on July 13, 2001, convicting Curbelo of the conspiracy count and of the six counts of possession with intent to distribute cocaine base. He was acquitted of all

five firearms charges. On March 20, 2002, the court conducted a sentencing hearing. At the hearing, the district judge found that Curbelo

had lied under oath at trial, but the judge also stated that he was

"highly skeptical of some of the truthfulness of Mr. Williams, in particular in his inability to admit the truth that he had anything to do

with the robbery." The court sentenced Curbelo to seven concurrent

sentences of 360 months, plus seven concurrent terms of five-years

of supervised release. Curbelo has appealed, and we possess jurisdiction pursuant to 28 U.S.C. § 1291. 

II.

Curbelo contends that he is entitled to a new trial because the district court, in the midst of his trial and without his consent, dismissed

6 UNITED STATES v. CURBELO
one of his jurors and permitted eleven jurors to hear the evidence and

decide his fate. In response, the Government concedes that the court

did err in proceeding with an eleven-person jury, but it contends that

the error was harmless and that Curbelo’s convictions and sentence

should be affirmed. 

The Supreme Court has established various standards for determining when an error requires that a criminal defendant’s conviction be

vacated. For most constitutional errors, the Government must demonstrate that the error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24 (1967). And for most

nonconstitutional errors, the Government must demonstrate that the

error did not have a "substantial and injurious effect or influence in

determining the jury’s verdict." Kotteakos v. United States, 328 U.S.

750, 776 (1946). Finally, some errors, involving "‘structural defects

in the constitution of the trial mechanism . . . defy analysis by

"harmless-error" standards,’" because they are "necessarily unquantifiable and indeterminate." Sullivan v. Louisiana, 508 U.S. 275, 281-

82 (1993) (quoting Arizona v. Fulminante, 499 U.S. 279, 309 (1991)).

Such errors always require invalidation of a judgment. Id. at 279.

Determining the character of the error at issue in this case presents

some difficulties. 

Clearly this error violated Fed. R. Crim. P. 23(b), which entitles a

defendant tried in federal court to a twelve-person jury. At the time

of Curbelo’s trial, Rule 23(b) provided that:

Juries shall be made 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) (2002).3 Pursuant to this Rule, Curbelo was

3Rule 23 was amended on December 1, 2002, "as part of the general

restyling of the Criminal Rules to make them more easily understood."

UNITED STATES v. CURBELO 7
entitled to be tried by a twelve-person jury, and the district court possessed no discretion — prior to deliberations — to conduct the trial

with an eleven-member jury, absent Curbelo’s consent.4 Indeed, the

Government candidly concedes that the court violated Rule 23(b) in

proceeding, over Curbelo’s objection, with eleven jurors. 

In addition, the jury right embodied in Rule 23(b) unquestionably

has constitutional dimensions. First, two provisions of the Constitution relate specifically to the right to trial by jury. Article III, § 2, cl.

3, provides: "The Trial of all Crimes . . . shall be by Jury." U.S.

Const. Art. III, § 2, cl. 3. Similarly, the Sixth Amendment provides:

"In all criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury of the State and district

wherein the crime shall have been committed." U.S. Const. Amend.

VI. 

Moreover, the right to trial by jury has a long and venerable history. See generally Duncan v. Louisiana, 391 U.S. 145 (1968).

Indeed, "by the time our Constitution was written, jury trial in criminal cases had been in existence in England for several centuries and

carried impressive credentials traced by many to [the] Magna Carta."

Id. at 151. Thus, the right to a jury trial was one of the most important

protections placed in the Constitution. See id. at 149 ("[T]rial by jury

in criminal cases is fundamental to the American scheme of justice.");

Patton v. United States, 281 U.S. 276, 312 (1930) ("[T]he right of the

accused to a trial by a constitutional jury [must] be jealously preserved."). Although the Supreme Court initially interpreted the Constitution to preserve the twelve-person jury safeguard as it was known

at common law in all courts in the United States, see Thompson v.

Utah, 170 U.S. 343, 350-51 (1898); see also United States v. Va.

See Fed. R. Crim. P. 23, Advisory Committee Notes to 2002 Amendments. The revisions were "intended to be stylistic only," id., and they

have no bearing on this appeal. 

4The language of Rule 23(b) is clear and unequivocal. Strikingly, however, the Government advised us at oral argument that "nobody picked

up a rule book," that "none of the lawyers read the Rule," and that "if the

parties had read Rule 23(b), as opposed to relying upon their memories,

we wouldn’t have this issue before the Court." 

8 UNITED STATES v. CURBELO
Erection Corp., 335 F.2d 868, 871 (4th Cir. 1964) ("Twelve is the

magic number."), more recently it has held that the Sixth Amendment,

as applied to the states through the Fourteenth, does not entitle a

defendant tried in state court to a twelve-person jury. See Williams v.

Florida, 399 U.S. 78, 89-90 (1970). In view of this holding and the

fact that our court and other courts have upheld the constitutionality

of Rule 23(b), see, e.g., United States v. Fisher, 912 F.2d 728, 733

(4th Cir. 1990), we cannot conclude that the Sixth Amendment provides an unconditional right to a twelve-person jury in federal court.5

Significantly, however, neither the Supreme Court nor any federal

appellate court has resolved whether the Due Process Clause permits

the arbitrary deprivation of a defendant’s right, guaranteed by Rule

23(b), to a twelve-person jury. Given the critical importance of twelve

jurors at common law and Congress’s particular care in Rule 23(b) to

preserve that right, except in carefully limited circumstances, such a

holding seems not unlikely. Indeed, in holding that Rule 31(a)’s jury

unanimity requirement is constitutionally mandated, the Supreme

5We note, however, that the Supreme Court has never held that the

Sixth Amendment does not require a twelve-person jury in federal prosecutions, and several members of the Court have rejected the view that

"all elements of jury trial within the meaning of the Sixth Amendment

are necessarily embodied in or incorporated into the Due Process Clause

of the Fourteenth Amendment." Johnson v. Louisiana, 406 U.S. 356, 369

(1972) (Powell, J., concurring in that case and Apodaca v. Oregon, 406

U.S. 404 (1972)); see Ballew v. Georgia, 435 U.S. 223, 246 (1978)

(Powell, J., concurring in judgment and joined by Burger, C.J., and

Rehnquist, J.) (suggesting — in case involving the size of state court jury

— that not "every feature of jury trial practice must be the same in both

federal and state courts"). This has led Professor Wright to note that "it

may well be that in federal court a jury of [12] is still constitutionally

compelled." 2 Charles Alan Wright, Federal Practice & Procedure

§ 373, at 457 (3d ed. 2000). In addition, we note that many state constitutions contain a specific guarantee to twelve-person juries, obviating any

need for a Sixth Amendment guarantee of this right in those states. See,

e.g., State v. Henley, 687 P.2d 1220, 1223 (Ariz. 1984) (Arizona); Byrd

v. State 879 S.W.2d 435, 437 (Ark. 1994) (Arkansas); State v. Poindexter, 545 S.E.2d 414, 416 (N.C. 2001) (North Carolina); State v. Stegall,

881 P.2d 979, 981-82 (Wash. 1994) (Washington); State v. Wyndham, 92

S.E. 687, 687 (W. Va. 1917) (West Virginia). 

UNITED STATES v. CURBELO 9
Court has indicated that the right to a unanimous jury "is more accurately characterized as a due process right than as one under the Sixth

Amendment." Schad v. Arizona, 501 U.S. 624, 634 n.5 (1991) (plurality opinion); see also Apodaca v. Oregon, 406 U.S. 404 (1972) (holding that defendant has constitutional right to unanimous jury verdict

in federal court). Moreover, the Court has held that violations of state

procedural rules can amount to violations of an individual’s

constitutionally-guaranteed right to due process. For example, in

Hicks v. Oklahoma, 447 U.S. 343 (1980), the Court held that a state

sentencing decision violated due process when the jury that imposed

the sentence was not informed of its discretion, under state law, to

impose a lower sentence. Id. at 346. According to the Court, this sentencing decision involved more than "the denial of a procedural right

of exclusively state concern"; it was a violation of the fundamental

right to due process. Id. Similarly, in Logan v. Zimmerman Brush Co.,

455 U.S. 422 (1982), when a state denied a hearing to a complainant

solely because a state official missed a state law deadline, the Court

held the denial violated the complainant’s due process rights. Id. at

432-34. 

Fortunately, we need not resolve the knotty question of whether the

error here is of constitutional dimension. This is so because, even if

it is not, we must, for two independent reasons, vacate Curbelo’s sentence. We discuss each in turn. 

III.

First, whether violative of the Constitution or not, the error here is

structural, and such errors "invalidate the conviction" without any

showing of prejudice. Sullivan, 508 U.S. at 279.6

6Despite occasionally suggesting in dicta that structural errors must

implicate constitutional rights, see United States v. Lane, 474 U.S. 438,

446 n.9 (1986), the Supreme Court has clearly held that structural errors

need not be of constitutional dimension. Indeed, the Court reached precisely this conclusion only a few months ago. See Nguyen v. United

States, 123 S. Ct. 2130, 2137 (2003) (refusing to consider constitutional

challenge and holding that violation of statute alone constituted plain

error, requiring invalidation of conviction without showing of prejudice);

see also Gomez v. United States, 490 U.S. 858, 876 (1989) (holding that

10 UNITED STATES v. CURBELO
Structural errors affect the very "‘framework within which the trial

proceeds, rather than simply . . . the trial process itself.’" Neder v.

United States, 527 U.S. 1, 8 (1999) (quoting Fulminante, 499 U.S. at

310). Examples of such errors include a total deprivation of the right

to counsel, see Gideon v. Wainwright, 372 U.S. 335 (1963), lack of

an impartial trial judge, see Tumey v. Ohio, 273 U.S. 510 (1927), an

unlawful exclusion of grand jurors of defendant’s race, see Vasquez

v. Hillery, 474 U.S. 254 (1986), the right to self-representation at trial,

see McKaskle v. Wiggins, 465 U.S. 168 (1984), the right to a public

trial, see Waller v. Georgia, 467 U.S. 39 (1984), an erroneous

reasonable-doubt instruction to the jury, see Sullivan v. Louisiana,

508 U.S. 275 (1993), and the seating of a juror who should have been

removed for cause, see United States v. Martinez-Salazar, 528 U.S.

304, 316 (2000); see also Neder, 527 U.S. at 8 (collecting structural

error cases (citing Johnson v. United States, 520 U.S. 461, 468-69

(1997))). It is because such errors "‘infect the entire trial process’"

that they require reversal without regard to the evidence in a particular case. Neder, 527 U.S. at 8 (quoting Brecht v. Abrahamson, 507

U.S. 619, 630 (1993)). The error here — depriving a defendant of the

violation of statute governing duties of federal magistrate judges required

reversal without regard to actual prejudice); Young v. United States, 481

U.S. 787 (1987) (plurality opinion) (holding violation of right to disinterested prosecutor fundamental and avoiding constitutional issue; utilizing

instead Court’s supervisory authority to reverse); United States v.

American-Foreign S.S. Corp., 363 U.S. 685, 691 (1960) (holding that

violation of statute governing en banc participation of circuit judges

required judgment to be vacated without showing of prejudice). Contrary

to our dissenting colleague’s suggestion, post at 25, these cases do not

involve jurisdictional issues; indeed, the Government specifically recognized that the error in Nguyen was not jurisdictional. See Brief for the

United States in Nguyen v. United States, 123 S. Ct. 2130 (2003). Nor,

notwithstanding the dissent’s contention, has the Supreme Court ever

held that "structural errors necessarily must affect a defendant’s constitutional rights." Post at 23. The decisions relied on by the dissent for this

proposition, post at 23-24, merely hold that not every constitutional error

is a structural error; none holds that a structural error need be premised

on a constitutional deprivation. 

UNITED STATES v. CURBELO 11
verdict of twelve jurors, without his consent or any finding of good

cause — is such an error.7

Like other structural errors, the error here has repercussions that are

"necessarily unquantifiable and indeterminate." Sullivan, 508 U.S. at

282. This is particularly true given the rules of evidence and the

restrictions that they quite legitimately place on any inquiry into jury

deliberations. See generally Tanner v. United States, 483 U.S. 107

(1987). We simply cannot know what affect a twelfth juror might

have had on jury deliberations. Attempting to determine this would

involve pure speculation. 

To be sure, we could review the trial transcript, weigh the relative

credibility of witnesses ourselves, and make an independent assessment of Curbelo’s guilt. However, the Supreme Court has repeatedly

instructed that such determinations are exclusively reserved in our

system of justice for the jury, and are not to be undertaken by an

appellate court. See Sullivan, 508 U.S. at 281 ("[Where a] reviewing

court can only engage in pure speculation — its view of what a reasonable jury would have done . . . , ‘the wrong entity judge[s] the

defendant guilty.’" (second alteration in original) (quoting Rose v.

Clark, 478 U.S. 570, 578 (1986)); Bollenbach v. United States, 326

U.S. 607, 615 (1946) ("In view of the place of importance that trial

by jury has in our Bill of Rights, it is not to be supposed that Congress

[in enacting the harmless error statute] intended to substitute the

belief of appellate judges in the guilt of an accused, however . . . justifiably engendered by the dead record, for ascertainment of guilt by a

7The jury error in this case is easily distinguishable from the error in

United States v. Olano, 507 U.S. 725 (1993), which the Court held

should be evaluated for its prejudicial impact. See id. at 739-40 (applying

harmless error analysis where alternate jurors had improperly been

allowed in jury room); see also United States v. Myers, 280 F.3d 407,

412 (4th Cir.) (requiring defendant to demonstrate prejudice for violation

of Rule 24(c) to be reversible), cert. denied, 123 S. Ct. 53 (2002). In

Olano, the trial court erroneously permitted alternate jurors to be present

during jury deliberations. In such circumstances, it would be possible to

ascertain whether a defendant was prejudiced by the error. In this case,

by contrast, we can never know if the improperly-dismissed juror would

have voted to acquit. 

12 UNITED STATES v. CURBELO
jury under appropriate judicial guidance, however cumbersome that

process may be."). 

The Court has recognized that when an error "involves a violation

of a statutory provision that ‘embodies a strong policy concerning the

proper administration of judicial business,’" courts may vacate the

judgment without assessing prejudice. Nguyen v. United States, 123

S. Ct. 2130, 2138 (2003) (quoting Glidden Co. v. Zdanok, 370 U.S.

530, 536 (1962) (plurality decision)). Thus, while there is a "strong

presumption that" when counseled defendants have had their case

resolved by an impartial adjudicator, "other errors that may have

occurred are subject to harmless-error analysis," Rose, 478 U.S. at

579, the adjudicators themselves must be properly authorized and

constituted. When they are not, even if impartiality is not at issue, the

judgment must be vacated. See id. (observing that harmless error

review does not apply where "the wrong entity judged the defendant

guilty"); see also Nguyen, 123 S. Ct. at 2138; Gomez v. United States,

490 U.S. 858, 876 (1989); United States v. American-Foreign S.S.

Corp., 363 U.S. 685, 691 (1960). 

In Nguyen, for example, the Court vacated a decision by the Ninth

Circuit that had been rendered by a panel consisting of two Article III

judges and the Chief Judge of an Article IV territorial court. 123

S. Ct. at 2132-34. The Court held that Congress had not authorized

Article IV judges to serve on the courts of appeals, and that the Chief

Judge of the District for Northern Mariana Islands should not have

been permitted to serve on the Ninth Circuit panel. Id. at 2135.

Though urged by the Government to assess the prejudicial impact of

the error, the Court explicitly declined to do so, noting that when an

"error . . . involves a violation of a statutory provision that ‘embodies

a strong policy concerning the proper administration of judicial business,’" id. at 2137-38 (quoting Glidden, 370 U.S. at 536), courts need

not "assess trial errors for their prejudicial effect." Id. at 2137. 

In Gomez, the Court also declined to apply a harmless-error analysis to a violation of congressional policy regarding the proper adjudicator in federal court. 490 U.S. at 876. There, the district court had,

without the defendant’s consent, allowed a magistrate judge to preside

over jury selection in a felony criminal trial. Id. at 860-61. The Court

decided that the Federal Magistrates Act did not authorize such a delUNITED STATES v. CURBELO 13
egation. Importantly for our purposes here, the "defendants made no

special claim of prejudice. They contended . . . that the Magistrate had

no power to conduct the voir dire examination and jury selection." Id.

at 861. Although the Government urged the Court to apply harmless

error review, the Court refused, observing that "[a]mong those basic

fair trial rights that ‘can never be treated as harmless’ is . . . a defendant’s right to have all critical stages of a criminal trial conducted by

a person with jurisdiction to preside." Id. at 876 (quoting Chapman,

386 U.S. at 23). 

Similarly, in American-Foreign, the Court refused to review for

prejudice a decision rendered by an improperly constituted en banc

court. 363 U.S. at 691. In that case, a retired circuit judge had participated in an en banc decision of a circuit court. The Supreme Court

held that the relevant federal statute did not authorize retired judges

to participate in such a proceeding. Id. at 686, 691. Thus, the Court

held that "under existing legislation a retired circuit judge is without

power to participate in an en banc Court of Appeals determination,

and accordingly that the judgment must be set aside." Id. at 691.

Despite the Government’s argument that the error was harmless, see

Brief for Respondents in American-Foreign at 37-47, the Court

declined to consider "the merits of the underlying litigation" in determining whether the judgment should be vacated. American-Foreign,

363 U.S. at 691. 

Just as the judgments rendered in those cases required vacatur

without regard to prejudice because the adjudicators lacked congressional authorization, the judgment by the eleven-person jury in this

case must be set aside. Rule 23(b) has deep historical and constitutional roots and indisputably represents a "strong policy," Nguyen,

123 S. Ct. at 2138, of ensuring criminal defendants in federal court

the right to a twelve-person jury. Moreover, under the clear provisions

of the Rule, the district court was "without power," AmericanForeign, 363 U.S. at 691, to dismiss one of the jurors prior to deliberation, absent Curbelo’s consent. Consequently, the district court’s

action depriving Curbelo of his right to a twelve-person jury requires

us to vacate his convictions, without inquiry into specific prejudice

caused by the error. See United States v. Hanno, 21 F.3d 42, 48 (4th

Cir. 1994) (holding that, without regard to evidence of defendant’s

guilt, district court’s improper dismissal of jurors was prejudicial). 

14 UNITED STATES v. CURBELO
Not surprisingly, all of our sister circuits, in considering violations

of Rule 23(b), have agreed that such violations require per se reversal

and are not subject to harmless error review.8 For example, in United

States v. Essex, 734 F.2d 832 (D.C. Cir. 1984), the Court of Appeals

for the District of Columbia vacated a defendant’s conviction because

a trial court excused a juror after deliberations had begun without

conducting a specific inquiry into whether dismissal was "necessary"

and for "just cause," as required by Rule 23(b). Id. at 834, 842.

Eschewing harmless error review, the court of appeals awarded Essex

a new trial, explaining that she had been denied "[t]he obvious and

substantial right . . . to a unanimous verdict by the jury of 12 who

heard her case and began their deliberations." Id. at 844 (emphases in

original). 

In doing so, the Essex court specifically held that the harmless error

analysis does not apply to violations of Rule 23(b). Id. at 845. The

court carefully analyzed and explained the reasons for excepting a

Rule 23(b) error from harmless error review: 

In cases involving secret jury deliberations it is virtually

impossible for a defendant to demonstrate actual prejudice.

Courts therefore have determined that the potential for serious harm and the interest of the defendant — and the public

— in fair, unbiased and secret deliberations are so great that

no evidentiary showing of actual prejudice, or of defense

8The only court to have suggested that a harmless error analysis might

apply is the Eighth Circuit, in United States v. Roby, 592 F.2d 406, 408

(8th Cir. 1979) (per curiam). In Roby, however, the Eighth Circuit

addressed a situation where the violation of Rule 23(b) was a technical

one: the defendant’s consent had been obtained orally, rather than in

writing. Id. In similar circumstances, most courts, including ours, refuse

to find a Rule 23(b) error, reasoning that a defendant has either waived

the writing requirement or invited the error. See, e.g., Fisher, 912 F.2d

at 731-33 (finding that defendant had waived Rule 23(b)’s written stipulation requirement by orally consenting to eleven-person jury); see also,

e.g., United States v. Mahler, 141 F.3d 811, 814-15 (8th Cir. 1998)

(applying invited error doctrine in similar circumstances). The writing

requirement of Rule 23(b) is a technical aspect of the Rule, and oral consent will, in most cases, satisfy the Rule’s stipulation requirement. The

Eighth Circuit’s per curiam decision in Roby stands for nothing more. 

UNITED STATES v. CURBELO 15
counsel’s objection to the internal functioning of the jury of

which he could not possibly be informed, is required. 

Id. The D.C. Circuit reaffirmed this holding in United States v. Patterson, 26 F.3d 1127 (D.C. Cir. 1994). There, as in Essex, the trial

court had excused a juror without making the requisite finding "that

it is ‘necessary’ to excuse the juror for ‘just cause.’" Id. at 1129. Relying on Essex, the court held that such an error is per se reversible,

without regard to whether the error prejudiced the defendant. Id.

Similarly, in United States v. Taylor, 498 F.2d 390 (6th Cir. 1974)

(per curiam), the Sixth Circuit rejected the proposition that harmless

error review applies to a violation of Rule 23(b). Id. at 392. In Taylor,

the trial court had obtained an oral stipulation from defendant’s counsel to proceed with eleven jurors if a juror became ill. Id. at 391. The

Sixth Circuit had previously held that an oral stipulation satisfied the

stipulation requirement of Rule 23(b). See United States v. Lane, 479

F.2d 1134 (6th Cir. 1973) (per curiam). The Taylor court, however,

found error in the trial court’s failure to question the defendant

directly on whether he consented to proceeding with eleven jurors.

Taylor, 498 F.2d at 391. Thus, the "sole question" presented on

appeal was "whether the failure of the District Court to comply literally with the terms of Rule 23 requires reversal for new trial." Id. at

392. Addressing this issue, the Sixth Circuit stated: "[w]e note that the

government’s primary insistence on this appeal is that the error complained of was harmless. We cannot so construe it. To do so would

be to open the door to emasculation of the rule." Id.

By the same token, the Seventh Circuit in United States v. Araujo,

62 F.3d 930 (7th Cir. 1995), recently decided that a violation of Rule

23(b) entitles a defendant to a new trial, without regard to whether the

error was actually prejudicial. Id. at 937. In Araujo, the court noted

that two distinct questions are presented by a trial court’s decision to

excuse a juror: "first, whether the court had just cause to excuse the

twelfth juror, and second, whether the district court was correct in

allowing the bobtailed jury to continue rather than declaring a mistrial." Id. at 933. The trial court had dismissed a juror who had "problems with his automobile," id. at 932, and "was stranded on the side

of the road." Id. (internal quotation marks omitted). The Seventh Circuit determined that these bases for dismissal failed to satisfy the "just

16 UNITED STATES v. CURBELO
cause" requirement of Rule 23(b), and it reversed Araujo’s convictions without reaching the second question. Id. at 934-37. Importantly, and particularly relevant here, the court awarded relief on the

Rule 23(b) error without considering whether Araujo suffered actual

prejudice. Id. at 937. 

Finally, the Ninth Circuit has also decided that a violation of Rule

23(b) entitles a defendant to a new trial — without regard to a showing of actual prejudice. In United States v. Tabacca, 924 F.2d 906

(9th Cir. 1991), the court concluded that Rule 23(b) was violated

when a juror was excused because his wife had taken his car keys. Id.

at 913. Finding these facts insufficient to provide "just cause" to dismiss the juror, the court awarded Tabacca a new trial. Id. at 915.

Likewise, in United States v. Guerrero-Peralta, 446 F.2d 876 (9th

Cir. 1971), the Ninth Circuit premised its reversal of a defendant’s

convictions on a Rule 23(b) violation. In that situation, defense counsel had orally represented to the trial court that the defendant agreed

to proceed with eleven jurors. Id. at 877. The court found that the oral

representation failed to satisfy Rule 23(b)’s mandate,9 and it reversed

without considering harmlessness. Id.; see also United States v.

Reyes, 603 F.2d 69, 71-72 (9th Cir. 1979) (declining to apply harmless error standard to violation of Rule 23(b)’s written stipulation

requirement).10

In light of the fundamental importance of the jury in our criminal

9Rule 23(b) requires a defendant’s stipulation to be in writing. See Fed.

R. Crim. P. 23(b)(2) (2002). 

10Our sister circuits have also held that violations of other Federal

Rules of Criminal Procedure are per se reversible. See, e.g., Green v.

United States, 262 F.3d 715, 717-18 (8th Cir. 2001) (holding violation

of Rule 8(c) of Rules Governing § 2255 Proceedings, which guarantees

right to counsel on habeas, required reversal without regard to prejudice);

United States v. Fawley, 137 F.3d 458, 470-71 (7th Cir. 1998) (holding

jury instruction that violated Rule 31(a) was reversible error without consideration of prejudice); United States v. F. J. Vollmer & Co., Inc., 1

F.3d 1511, 1522 (7th Cir. 1993) (holding that "[t]he right to poll a jury

is a substantial right" guaranteed by Rule 31(d) and that "[f]ailure to poll

a jury upon a timely request is per se error requiring reversal" (internal

quotation marks omitted)). 

UNITED STATES v. CURBELO 17
justice system, Curbelo’s right to due process, and the express provision in the Federal Rules of Criminal Procedure governing the dismissal of a juror, we must follow our sister circuits and conclude that

the court’s decision to excuse the twelfth juror prior to deliberations

and absent the defendant’s consent falls into the special category of

errors that "defy analysis by harmless-error standards" and require

automatic reversal because they are "necessarily unquantifiable and

indeterminate." Sullivan, 508 U.S. at 281-82 (internal quotation marks

and citation omitted); see United States v. Neal, 101 F.3d 993, 999

(4th Cir. 1996) ("Errors that are not susceptible to harmless error

review . . . necessarily affect substantial rights." (internal quotation

marks and citation omitted)). 

The Rule 23(b) error in Curbelo’s trial tainted the process by which

guilt was determined, and it therefore inherently casts doubt on the

reliability of the jury’s verdict. It is this sort of error — like others

that have been deemed ill-suited to the harmless error inquiry, see,

e.g., Nguyen, 123 S. Ct. at 2138; Martinez-Salazar, 528 U.S. at 316;

Sullivan, 508 U.S. at 281-82; United States v. David, 83 F.3d 638,

647 (4th Cir. 1996) — that is inherently prejudicial and per se reversible. As the D.C. Circuit explained in Essex, in assessing a similar

Rule 23(b) violation, "where, as here, the prejudice is inherent in the

error complained of, the defendant is not required to prove that he is

innocent, or that the outcome of the trial would have been different."

734 F.2d at 845. Accordingly, "even defendants who are obviously

guilty are entitled to the basic procedural safeguards of a fair trial,"

including those required by Rule 23(b). Id.11

11The dissent’s effort to distinguish Essex and the other Rule 23(b)

decisions of our sister circuits misses the mark. The dissent maintains

that in those cases "the district court failed to establish sufficient ‘just

cause’ for excusing a juror," while in this case Curbelo does not assert

a failure to establish "just cause." Post at 29. Even if just cause is established, however, Rule 23(b) permits a trial court to excuse a juror only

"after the jury has retired to consider its verdict." Fed. R. Crim. P. 23(b).

In the Rule 23(b) decisions of our sister circuits, the district courts at

least acted at the juncture permitted by the Rule — after jury deliberations had commenced. Here the district court decided to proceed with

eleven jurors in the midst of trial, well prior to jury deliberations. Nothing in the Rule permits such a procedure, no matter how "just" the cause.

18 UNITED STATES v. CURBELO
IV.

Even if we were to conclude that the district court’s violation of

Rule 23(b) — in improperly dismissing one of the jurors from Curbelo’s trial — did not constitute structural error and therefore was

subject to harmless error review, we would nonetheless be forced to

vacate Curbelo’s conviction. This is so because the Government has

failed to meet its burden of demonstrating that the error was harmless,

even if we assume the error is not of constitutional dimension and we

thus apply the harmless error standard announced by the Court in Kotteakos. 

If the defendant fails to raise an objection to an error at trial, we

review the error under the plain error standard of Rule 52(b). Under

that rule, the defendant bears the burden of demonstrating that a plain

error affected his substantial rights, and even if he meets this burden,

an appellate court has discretion to ignore the error and should do so

unless it "seriously affect[s] the fairness, integrity or public reputation

of judicial proceedings." Olano, 507 U.S. at 732 (internal quotation

marks omitted and alteration in original). In contrast, if a defendant

preserves his objection to an error, an appellate court reviews the

error under the harmless error standard of Rule 52(a) — a standard

significantly more favorable to the defendant. Under Rule 52(a), the

Government bears the burden of demonstrating that the error did not

affect the defendant’s substantial rights. If the Government fails to

meet that burden, an appellate court must reverse; it has no discretion

to ignore the error. Id. at 734-35. The Government concedes that Curbelo preserved his objection to the error here and that (if the error

were not structural) our review is under the more-favorable-to-thedefendant standard of Rule 52(a), with the Government bearing the

burden of proving the error did not affect Curbelo’s substantial rights.

In its landmark decision in Kotteakos, the Supreme Court explained

that when reviewing a nonconstitutional error under Rule 52(a), an

appellate court must determine if the Government has proved "with

fair assurance . . . that the judgment was not substantially swayed by

the error." 328 U.S. at 765. Moreover, in determining if the Government has met this burden, a court must not "strip[ ] the erroneous

action from the whole." Id. Thus, 

UNITED STATES v. CURBELO 19
[t]he inquiry cannot be merely whether there was enough

[evidence] to support the result, apart from the phase

affected by the error. It is rather, even so, whether the error

itself had substantial influence. If so, or if one is left in

grave doubt, the conviction cannot stand. 

Id. The Court later explained that "grave doubt" meant "that, in the

judge’s mind, the matter is so evenly balanced that he feels himself

in virtual equipoise as to the harmlessness of the error." O’Neal v.

McAninch, 513 U.S. 432, 435 (1995). 

The Government maintains that the conceded Rule 23(b) error here

was harmless, but its entire argument as to harmlessness is as follows:

There is no reason to believe that the verdict of a twelvemember jury would have been any different than the verdict

of the eleven-member jury. Evidence of Defendant’s

involvement in the drug conspiracy and evidence of Defendant’s participation in a series of drug deals was quite simply overwhelming. Because Defendant’s substantial rights

were not impaired, the verdict should be affirmed. 

Brief of Appellee at 7. The Government does not in any way detail

the assertedly "simply overwhelming" evidence. 

This is, perhaps, for good reason. Although our careful review of

the record indicates that the Government presented substantial evidence against Curbelo, the Government’s case was not "simply overwhelming." Indeed, we cannot say with any assurance, let alone "fair

assurance" that the absence of a twelfth juror did "not substantially

sway[ ]" the judgment. Kotteakos, 328 U.S. at 765. Accordingly, we

cannot conclude that the Government has met its burden of demonstrating that the jury’s decision was unaffected by the absence of the

twelfth juror. 

As an initial matter, we note that the Government charged Curbelo

with twelve crimes and that the eleven-person jury acquitted him of

five of them. The same witnesses testified as to all of the counts, i.e.,

both those on which the jury acquitted, as well as those on which it

20 UNITED STATES v. CURBELO
convicted. This certainly indicates that a reasonable twelfth juror

could have found the Government’s evidence lacking (as the remaining eleven did for some counts). 

Indeed, the district court itself found Williams, the principal Government witness, less than truthful; surely, a reasonable juror could

have as well. A juror could have concluded that Williams lied not

only about his role in Wendy’s kidnaping and the robbery but also

about his drug deals with Curbelo. Certainly when Williams became

the target of a federal investigation, he had every reason to lie about

his dealings with Curbelo. 

Furthermore, Williams himself admitted that there was "no physical evidence of any of th[e] transactions" in which he purportedly

engaged with Curbelo. Law enforcement officers also acknowledged

this and the limitations of the tapes that purportedly recorded the

transactions. Except for the agents, who could only testify about what

Williams and others told them and what the arguably-inconclusive

tapes revealed, all of the witnesses against Curbelo were coconspirators or drug dealers. Many of them had cooperation agreements with the Government, and hence, a motive to lie. 

Perhaps most significantly, a juror could conclude that Jose, rather

than Curbelo, had sold drugs to Williams. After all, Curbelo rarely

spoke directly to Williams. Indeed, for many of the transactions, Williams spoke only to Jose, gave money only to Jose, and took drugs

only from Jose. Thus, the jury was provided with a possible answer

to the critical question that arises in almost every criminal case: If the

defendant did not commit the crime, who did? It is undisputed that

Curbelo had little grasp of English. This gives some credence to Curbelo’s testimony that, because of the language barrier, he had no idea

that Williams and Jose were dealing drugs. 

Finally, Curbelo took the stand in his own defense and maintained

his innocence with detailed explanations of his non-drug-related relationships with the various witnesses. In light of the questionable credibility of many Government witnesses, the concessions of the law

enforcement officers who testified for the prosecution, Curbelo’s own

testimony, and the problems with the audio and video tapes, a twelfth

juror might easily have been left with reasonable doubt as to CurUNITED STATES v. CURBELO 21
belo’s guilt. Further, a twelfth juror might, during the course of jury

deliberations, have been able to raise persuasive points in Curbelo’s

defense; the juror may even have held out for acquittal on all counts.

Just as we recognized in Myers, 280 F.3d at 412, that the presence of

an additional juror made a guilty verdict less likely, we must

acknowledge in this case that the absence of a juror made a guilty

verdict more likely. 

For all of these reasons, even if the Rule 23(b) error were not structural, we would nonetheless conclude that Curbelo is entitled to a new

trial because the Government has failed to meet its burden to demonstrate that the error was harmless. To be sure, the Government offered

"enough to support the result," but we have no "fair assurance . . . that

the judgment was not substantially swayed by the error." Kotteakos,

328 U.S. at 765. Thus even if the error were subject to harmless error

review, we could not conclude that it was sufficiently harmless to justify affirming Curbelo’s convictions. 

V.

For the foregoing reasons, we vacate Curbelo’s convictions and

remand for a new trial.

VACATED AND REMANDED

WILKINS, Chief Judge, dissenting: 

The majority concludes that the decision by the district court to

proceed with 11 jurors without Curbelo’s consent is a structural error

that mandates reversal without any inquiry into whether the error

actually prejudiced Curbelo. Alternatively, the majority concludes

that the error was not harmless because the evidence was sufficiently

close that the absence of a twelfth juror may have affected the verdict.

Because I disagree with both of these conclusions, I respectfully dissent. 

I.

Most errors that are preserved at trial—including most constitutional errors—must be reviewed for harmlessness. See Fed. R. Crim.

22 UNITED STATES v. CURBELO
P. 52(a) (providing that "[a]ny error, defect, irregularity, or variance

that does not affect substantial rights must be disregarded"); Neder v.

United States, 527 U.S. 1, 7 (1999). The Supreme Court, however,

has "recognized a limited class of fundamental constitutional errors

that defy analysis by harmless error standards." Neder, 527 U.S. at 7

(internal quotation marks omitted). "Errors of this type are so intrinsically harmful as to require automatic reversal (i.e., ‘affect substantial

rights’) without regard to their effect on the outcome." Id. Such errors

include the complete deprivation of counsel, a biased trial judge,

racial discrimination in the selection of a grand jury, or a defective

reasonable doubt instruction. See id. at 8 (collecting cases). These

errors are always reversible because they "deprive defendants of basic

protections without which a criminal trial cannot reliably serve its

function as a vehicle for determination of guilt or innocence and no

criminal punishment may be regarded as fundamentally fair." Id. at 8-

9 (internal quotation marks and alteration omitted). 

The majority’s determination that the error here is structural—and

thus not subject to harmless error review—is incorrect for two reasons. First, this error cannot be structural because it is not of constitutional magnitude. Second, even if the error were of constitutional

dimension, it would not qualify as a structural error because it did not

render the trial inherently unreliable or unfair. 

A.

The Supreme Court and this court have repeatedly made clear that

structural errors necessarily must affect a defendant’s constitutional

rights. See, e.g., Neder, 527 U.S. at 7 ("Although [the harmless error

rule] by its terms applies to all errors where a proper objection is

made at trial, we have recognized a limited class of fundamental constitutional errors that defy analysis by harmless error standards."

(second emphasis added) (internal quotation marks omitted)); Rose v.

Clark, 478 U.S. 570, 577 (1986) ("[T]he Court in Chapman recognized that some constitutional errors require reversal without regard

to the evidence in the particular case." (emphasis added)); Arnold v.

Evatt, 113 F.3d 1352, 1360 (4th Cir. 1997) ("In examining the effect

of constitutional errors on criminal convictions, the Supreme Court

has established a distinction between structural errors, which require

automatic reversal, and all other errors, which are subject to harmlessUNITED STATES v. CURBELO 23
error analysis." (emphasis added)). As other circuits have recognized,

"[t]here is no separate category of structural error apart from constitutional error. The only question is whether any constitutional errors . . .

rise to the level of structural error." United States v. Sanchez, 269

F.3d 1250, 1272 n.41 (11th Cir. 2001) (en banc), cert. denied, 535

U.S. 942 (2002); see also Ross v. United States, 289 F.3d 677, 681

(11th Cir. 2002) (per curiam) ("Structural error, to which harmless

error analysis does not apply, occurs only with extreme deprivations

of constitutional rights . . . ." (emphasis added) (internal quotation

marks omitted)), cert. denied, 537 U.S. 1113 (2003); Bentley v.

Scully, 41 F.3d 818, 823 n.1 (2d Cir. 1994) ("A ‘structural error’

requires automatic reversal and is not subject to harmless error analysis because it involves a deprivation of a [basic] constitutional protection . . . ." (emphasis added)); United States v. Pavelko, 992 F.2d 32,

35 (3d Cir. 1993) ("‘Structural defects’ deprive the criminal trial of

constitutional protections . . . ." (emphasis added)). 

Yet the error that the majority classifies as structural—the decision

by the district court to proceed with 11 jurors absent Curbelo’s

consent—does not implicate Curbelo’s constitutional rights. In Williams v. Florida, 399 U.S. 78 (1970), the Supreme Court held that

criminal defendants have no Sixth Amendment right to a 12-person

jury. See Williams, 399 U.S. at 98-103. The majority suggests that the

holding of Williams may be limited to state court prosecutions and

that there may be a due process right to a 12-member jury. However,

in another case involving Federal Rule of Criminal Procedure 23(b),

we relied on Williams in recognizing that a defendant’s "constitutional right to [a] jury trial . . . does not include the right to a jury of

twelve." United States v. Fisher, 912 F.2d 728, 733 (4th Cir. 1990)

(citing Williams, 399 U.S. at 98-103). And, other circuits have interpreted Williams as establishing that criminal defendants have no constitutional right to 12 jurors. See, e.g., United States v. Barone, 114

F.3d 1284, 1308 n.21 (1st Cir. 1997) ("The Supreme Court has made

clear that the Constitution does not require twelve jurors for conviction. We have stated that Williams effectively answers the claim that

11 jurors are too few . . . ." (citation and internal quotation marks

omitted)); United States v. Smith, 789 F.2d 196, 205 (3d Cir. 1986)

("It is clear to us that twelve jurors are not [constitutionally] required

for a conviction."); United States v. Stratton, 779 F.2d 820, 831 (2d

24 UNITED STATES v. CURBELO
Cir. 1985) ("[T]he Supreme Court has . . . made clear that the Constitution does not require twelve jurors for conviction."). 

The Supreme Court decisions cited by the majority do not support

the proposition that "structural errors need not be of constitutional

dimension." Ante, at 10 n.6. Most of those cases involve jurisdictional

errors, not structural ones. See, e.g., Nguyen v. United States, 123

S. Ct. 2130, 2132 (2003) (vacating judgments of court of appeals

because panel consisting of two Article III judges and one Article IV

judge did not "ha[ve] the authority to decide petitioners’ appeals"). In

contrast to structural errors, which involve inherent prejudice to a particular defendant, see Neder, 527 U.S. at 7-9, the cases cited by the

majority deal with errors primarily affecting the structure and function of the judicial system. See Nguyen, 123 S. Ct. at 2137 ("[O]ur

enforcement of [the designation statute’s] outer bounds is not driven

so much by concern for the validity of petitioners’ convictions at trial

but for the validity of the composition of the Court of Appeals."); id.

("Even if the parties had expressly stipulated to the participation of

a non-Article III judge in the consideration of their appeals . . . such

a stipulation would not have cured the plain defect in the composition

of the panel." (emphasis omitted)); United States v. AmericanForeign S.S. Corp., 363 U.S. 685, 691 (1960) (vacating en banc court

of appeals decision because retired circuit judge was "without power

to participate" in that decision, and "intimat[ing] no view as to the

merits of the underlying litigation").1 In each of these cases, the

1One of the decisions cited by the majority includes language describing the jurisdictional error in terms of prejudice to the defendant. See

Gomez v. United States, 490 U.S. 858, 876 (1989) (referring to a defendant’s "basic . . . right to have all critical stages of a criminal trial conducted by a person with jurisdiction to preside"). But to the extent that

Gomez construes a magistrate judge’s involvement in jury selection in a

felony trial without the defendant’s consent as a structural error, that

error is based on a violation of the defendant’s constitutional right to

have an Article III judge preside over critical stages of trial. See Peretz

v. United States, 501 U.S. 923, 929-30 (1991); United States v. Arnoldt,

947 F.2d 1120, 1123 (4th Cir. 1991). Thus, Gomez does not support the

majority’s assertion that structural errors need not be constitutional in

nature. And, as explained above, a defendant has no constitutional right

to conviction by 12 jurors. 

UNITED STATES v. CURBELO 25
Supreme Court invalidated judicial proceedings involving judges who

lacked the power to participate in those proceedings. These decisions

are inapplicable to this case involving a violation of a procedural rule

during trial by a district judge who unquestionably had jurisdiction to

preside over the case. Indeed, I have found no decision—and the

majority has cited none—applying these holdings to trial errors

involving the composition of juries. 

The majority claims that the error here, like the error in Nguyen,

"involves a violation of a statutory provision that ‘embodies a strong

policy concerning the proper administration of judicial business’" and

therefore should not be reviewed for harmlessness. Nguyen, 123 S. Ct.

at 2137-38 (quoting Glidden Co. v. Zdanok, 370 U.S. 530, 536 (1962)

(plurality opinion)). But again, both Nguyen and Glidden involved

jurisdictional issues concerning whether particular judges were

empowered to preside over certain proceedings. Thus, it is clear that

the language regarding "administration of judicial business," as used

by the Supreme Court, applies only to errors that primarily affect the

court system. See American-Foreign S.S. Corp., 363 U.S. at 687

(describing issue regarding power of retired circuit judge to participate in en banc decision as "a question of importance to the Court of

Appeals in the administration of their judicial business"). 

B.

Even if the error here were of constitutional magnitude, it would

not amount to structural error. The Supreme Court has recognized that

The majority also cites Young v. United States ex rel. Vuitton et Fils

S.A., 481 U.S. 787 (1987). In Young, however, only four of the nine justices concluded that the appointment of an interested private attorney to

prosecute a criminal contempt action is per se reversible error because

of the inherent conflict of interest. See id. at 809-14 (Opinion of Brennan, J.). Three other justices concluded that the error should be reviewed

for harmlessness. See id. at 826-27 (Powell, J., concurring in part and

dissenting in part). In any event, the error in Young—like the errors in

the other cases cited by the majority, and unlike the error here—affected

the proper functioning of the judicial system. Indeed, a majority of the

Court in Young agreed that the exercise of the Court’s supervisory

authority was appropriate because the case involved "the determination

of the procedures to be employed by courts to enforce their orders, a subject that directly concerns the functioning of the Judiciary." Id. at 809.

26 UNITED STATES v. CURBELO
"most constitutional errors can be harmless." Neder, 527 U.S. at 8

(internal quotation marks omitted). "If the defendant had counsel and

was tried by an impartial adjudicator, there is a strong presumption

that any other constitutional errors that may have occurred are subject

to harmless-error analysis." Id. (internal quotation marks and alterations omitted). As explained above, the Supreme Court has "found

an error to be structural, and thus subject to automatic reversal, only

in a very limited class of cases," such as those involving the complete

deprivation of counsel, a biased trial judge, racial discrimination in

the selection of a grand jury, or a defective reasonable doubt instruction. Id. (internal quotation marks omitted). These errors require

reversal without any specific showing of prejudice to the defendant

because they "necessarily render a criminal trial fundamentally unfair

or an unreliable vehicle for determining guilt or innocence." Id. at 9.

But unlike the errors listed above—which, by their very nature,

create a powerful presumption that the defendant was prejudiced—an

error by a district court in proceeding with 11 jurors absent a defendant’s consent does not automatically render the trial unreliable or

unfair. Rule 23(b) allows the parties to stipulate at the outset of trial

that the jury will consist of fewer than 12 members. The parties may

also stipulate to proceeding with fewer than 12 jurors in the event the

court finds it necessary to excuse one or more jurors after trial commences. See Fed. R. Crim. P. 23(b) (amended Dec. 1, 2002). Further,

the court may proceed with 11 jurors—even without the parties’

consent—if the court finds it necessary to excuse a juror after deliberations have begun. See id. Thus, Rule 23 contemplates that verdicts

will sometimes be rendered, as here, by 11 rather than 12 jurors. 

It is undisputed that the decision by the district court to proceed

with 11 jurors violated the terms of Rule 23(b) because Curbelo

declined to consent to an 11-person jury and deliberations had not yet

begun. But the majority fails to explain how these circumstances

alone make the verdict rendered by 11 jurors inherently unreliable or

unfair. Indeed, the Supreme Court has specifically rejected the notion

that a jury with fewer than 12 members is less reliable or less fair to

defendants. See Williams, 399 U.S. at 100-02. 

The majority does not address the reliability and fairness concerns

that the Supreme Court has made clear are at the heart of structural

UNITED STATES v. CURBELO 27
error analysis. Instead, my colleagues emphasize that the error here

affected the entire trial and therefore its prejudicial effect cannot be

quantified. But this approach overlooks the critical point that the error

of proceeding with trial before 11 jurors without the defendant’s consent "does not necessarily render a criminal trial fundamentally unfair

or an unreliable vehicle for determining guilt or innocence." Neder,

527 U.S. at 9. Indeed, under the majority’s analysis, any error that

arguably had some connection to the trial as a whole—regardless of

whether it affected the reliability or fairness of the trial—might be

deemed structural. Cf. United States v. Lane, 474 U.S. 438, 446-49

(1986) (holding that misjoinder of defendants for trial, in violation of

Federal Rule of Criminal Procedure 8(b), is reviewable for harmlessness, and rejecting argument that such an error is per se prejudicial).

And, while the majority claims that the error here is not sufficiently

quantifiable to be analyzed for harmlessness, other courts have

reviewed similar errors to determine their prejudicial impact on the

defendant. See United States v. Ahmad, 974 F.2d 1163, 1165-66 (9th

Cir. 1992) (holding that any error in conducting Rule 23(b) conference in defendant’s absence was not plain error, in part because

"given the strength of the evidence against [the defendant], and the

swiftness with which the jury returned its verdict, there is no reason

to believe that the verdict would have been different if either [the

excused juror] had been on the jury, or a different jury had heard the

case"); United States v. Roby, 592 F.2d 406, 408 (8th Cir. 1979) (per

curiam) (holding that any violation of Rule 23(b) in failing to obtain

written stipulation to use of 11-member jury was harmless because

evidence against defendant was "very strong").2 Indeed, the Supreme

Court has made clear that even the complete omission of an element

of a crime from the jury charge may be reviewed for harmlessness.

See Neder, 527 U.S. at 10. In such a case, harmless error review is

2While the majority suggests that Roby dealt with a purely technical

violation of Rule 23(b), the Eighth Circuit apparently assumed for purposes of decision that the lack of a written stipulation rendered invalid

the defendant’s consent to proceed with 11 jurors. See Roby, 592 F.2d at

408. Nonetheless, the Eighth Circuit examined the record and determined

that any such error was harmless because "[t]he evidence . . . was very

strong" and "[t]here was no evidence to sustain appellant’s claim that she

was being framed." Id.

28 UNITED STATES v. CURBELO
permitted even though the jury was never required to weigh the evidence on the omitted element and therefore no juror found all the elements necessary for conviction. See id. Here, however, 11 jurors

received proper instructions on the offense elements, weighed all of

the evidence, and unanimously found Curbelo guilty. 

Also, the cases that the majority cites for the proposition that violations of Rule 23(b) are per se reversible error are inapplicable here.

In nearly all of these cases, the district court failed to establish sufficient "just cause" for excusing a juror before proceeding with an 11-

member jury, as required by Rule 23(b). The appellate decisions overturning the verdicts in these cases reflect the importance of preventing

jurors—particularly those who might have "dissenting views"—from

simply "opt[ing] out at will." United States v. Essex, 734 F.2d 832,

841 (D.C. Cir. 1984). Here, however, Curbelo does not assert that the

reason articulated by the district court for excusing the juror—that she

was "suffering from irritable bowel syndrome and [was] totally

unable to function," J.A. 143—was insufficient to establish "just

cause" for her excusal, or that the juror may have "opted out" because

of her views on the merits of the case.3 Cf. United States v. Wilson,

894 F.2d 1245, 1250-51 (11th Cir. 1990) (distinguishing Essex on the

ground that district court in case at bar had established just cause for

excusing juror during deliberations, and noting that "the record does

not present even the slightest basis to believe that this juror was a

holdout juror or that the jury had reached any sort of impasse in its

deliberations"). 

In sum, because the majority’s approach to structural error analysis

3The majority notes that "[o]ur sister circuits have also held that violations of other Federal Rules of Criminal Procedure are per se reversible."

Ante, at 17 n.10. The Supreme Court, however, has rejected the notion

that violations of the Rules of Criminal Procedure can never be reviewed

for harmlessness. See Lane, 474 U.S. at 446 n.9 ("It is difficult to see any

logic in the argument that although the harmless-error rule may be applicable to constitutional violations, it should not be applied to violations

of mere procedural rules."); see also id. at 448 n.11 (rejecting "a rule-byrule review establishing bright-line per se rules whether to conduct

harmless-error analysis" and explaining that "on its face, Rule 52(a)

admits of no broad exceptions to its applicability"). 

UNITED STATES v. CURBELO 29
vitiates the strong presumption in favor of harmless error review, I

must dissent from the holding that the error here is structural. See

Neder, 527 U.S. at 18 ("Reversal for error, regardless of its effect on

the judgment, encourages litigants to abuse the judicial process and

bestirs the public to ridicule it." (internal quotation marks omitted));

see also Sherman v. Smith, 89 F.3d 1134, 1138 (4th Cir. 1996) (en

banc) (emphasizing that "judges should be wary of prescribing new

errors requiring automatic reversal" and that "before a court adds a

new error to the list of structural errors (and thereby requires the

reversal of every criminal conviction in which the error occurs), the

court must be certain that the error’s presence would render every

such trial unfair"). 

II.

Having concluded that the error by the district court in proceeding

with 11 jurors was not structural, I would further hold that this error

was harmless. The narcotics trafficking evidence against Curbelo was

"quite simply overwhelming." Br. of Appellee at 7. Though the

majority highlights what it perceives as weaknesses in the Government’s evidence, the overall case against Curbelo on the narcotics

charges was extremely strong. This evidence included a number of

tape-recorded conversations among Curbelo and his associates discussing narcotics transactions; controlled purchases of narcotics from

Curbelo’s place of business; testimony from several individuals

describing Curbelo’s involvement in drug trafficking; warranted

searches of Curbelo’s real property and vehicle that yielded narcotics,

paraphernalia, and incriminating documents; and testimony from an

ATF agent describing an interview during which Curbelo—with his

attorney present—confessed in detail to drug trafficking. 

In response to this compelling evidence, Curbelo "den[ied] that

[he] was ever involved in drug transactions," J.A. 403; asserted that

all the Government’s witnesses were "lying," id. at 381; and claimed

that the surveillance tapes containing his voice had been "manipulated," "edited," and "tampered with," id. at 408, 410. Curbelo also

testified that his conversations about narcotics were intended to create

the illusion of a "pretend simulated drug business" in order to "set a

trap" for Thurnell Williams, who Curbelo believed had previously

robbed his store. Id. at 394-95. However, Curbelo claimed that he was

30 UNITED STATES v. CURBELO
later surprised to learn that one of his main associates who was also

part of these conversations was actually selling drugs to Williams.

Curbelo also denied making some of the statements to the ATF agent

and claimed that he had fabricated others to protect his girlfriend from

prosecution. 

In short, the Government presented a mountain of proof that Curbelo was guilty of narcotics trafficking. And, Curbelo’s complete

denial of guilt—relying on far-fetched explanations for the Government’s evidence—does not create a reasonable doubt regarding

whether the twelfth juror’s absence affected the verdict. See, e.g.,

United States v. Blevins, 960 F.2d 1252, 1263-64 (4th Cir. 1992)

(holding that despite defendants’ testimony asserting their innocence,

admission of improper evidence was harmless error in light of overwhelming evidence of defendants’ guilt). Also, while the record is not

entirely clear, it appears that the jury reached its verdict in a matter

of hours. Under these circumstances, I can say with more than "fair

assurance . . . that the judgment was not substantially swayed by the

error" of proceeding with 11 jurors. Kotteakos v. United States, 328

U.S. 750, 765 (1946).4

4

In asserting that a 12-member jury might have reached a different verdict on the narcotics charges, the majority notes that the 11-member jury

acquitted Curbelo on the charges of possessing firearms in furtherance of

drug trafficking. But this argument overlooks the fact that the evidence

concerning the firearms charges was different from and much weaker

than the evidence on the narcotics charges. If anything, the fact that the

same 11-member jury that convicted Curbelo of all the narcotics charges

also acquitted him of the firearms charges demonstrates the reliability of

this jury in carefully weighing the evidence relating to each of the

charges. 

The majority also notes that the district court was skeptical of certain

aspects of Williams’ testimony. As explained above, however, the Government presented extensive evidence against Curbelo from sources

other than Williams. Thus, even independent of Williams’ testimony, the

Government presented a compelling case establishing Curbelo’s involvement in drug trafficking. 

UNITED STATES v. CURBELO 31
III.

Despite the error by the district court in proceeding with 11 jurors,

Curbelo received what the Constitution entitles him to: "a fair trial,

not a perfect one." Rose, 478 U.S. at 579 (internal quotation marks

omitted). "‘[T]he commonsense judgment of a group of laymen . . .

large enough to promote group deliberation, free from outside

attempts at intimidation, and to provide a fair possibility for obtaining

a representative cross-section of the community’ was interposed

between [Curbelo] and his government accusers." Fisher, 912 F.2d at

733 (quoting Williams, 399 U.S. at 100) (first and second alterations

in original). And, Curbelo was convicted based on overwhelming evidence, with no indication that the absence of a twelfth juror had any

effect on the verdict. I therefore dissent from the majority’s decision

to overturn the jury’s verdict based on a nonconstitutional error that

did not prejudice Curbelo. Because I believe that the other points

raised by Curbelo are also meritless, I would affirm his convictions

and sentences.

32 UNITED STATES v. CURBELO