United States District Court, S.D. New York
OPINION AND ORDER
K. HELLERSTEIN UNITED STATES DISTRICT JUDGE.
to elaborate on my decision, made mid-trial, to dismiss a
tardy juror and replace that juror with an alternate. Trial
began on Monday, June 12, 2017. I instructed the jury to
arrive promptly at the courtroom, at 1:00 p.m. on Tuesday,
and at 10:00 a.m. each morning of trial thereafter. On June
14, 2017, the third day of trial, before 9:00 a.m., juror
number 2 left a message with the Court that he had a job
interview at 10 a.m, and could not come to the courthouse
until after the interview. That same juror had arrived
approximately 30 minutes late the previous morning. Because
several other jurors had not yet arrived due to train delays,
I deferred the issue of whether to excuse the absent juror
until the other late jurors arrived. After all other jurors
arrived at approximately 11:00 a.m., and trial was ready to
resume, my deputy called the absent juror, who told her that
he had not yet been interviewed, and expected that he would
arrive at the courthouse at 12:30 p.m. Since all other jurors
were present and ready to hear evidence, and because I
considered it unreasonable and possibly prejudicial to a fair
and orderly trial to allow further delay, I excused the juror
and replaced him with the first alternate.
tardy juror arrived a few minutes before noon. With counsel
present in the robing room, the juror informed the Court that
he had learned of the job interview at 8:30 a.m. that
morning, and that he had been unemployed for the last month.
After the juror was dismissed, counsel for defendant moved
for a mistrial, contending that dismissal of the juror
prevented defendant from receiving a fair trial. I denied the
motion, holding that the substitution of the alternate juror,
juror number 13 for juror number 2, would not compromise the
fairness and impartiality of the jury.
24(c) of the Federal Rules of Criminal Procedure authorizes a
trial judge to 'replace jurors who, prior to the time the
jury retires to consider its verdict, become or are found to
be unable or disqualified to perform their duties."'
United States v. Gambino, 951 F.2d 498, 502 (2d Cir.
1991). "Th[e] substitution of an alternate juror for
reasonable cause is the prerogative of the court and does not
require the consent of any party. A reviewing court should
not disturb the trial judge's exercise of discretion in
dismissing a juror unless there is a bias or prejudice to the
defendant." Id. at 503 (internal citations and
quotation marks omitted). Under Rule 24(c), "the trial
court has 'broad discretion to replace jurors at any time
before the jury retires for deliberations, '"
United States v. Rodriguez, 1998 WL 26189, at *6
(S.D.N.Y. Jan. 26, 1998) (quoting United States v.
Agramonte, 980 F.2d 847, 850 (2d Cir. 1992)), and the
Federal Rules of Criminal Procedure "do not require any
inquiry prior to the dismissal of a juror." United
States v. Fazio, 770 F.3d 160, 169 (2d Cir. 2014).
concluded - based on the information known to me at the time
- that the absent juror was unable to perform his duties as a
juror because he prioritized a job interview over his
obligations as a juror, and as a result, failed to timely
report to the courtroom. The delay caused by his absence was
not only a burden on the court, but on his fellow jurors,
several of whom had previously raised concerns about when the
trial was expected to finish in light of other obligations
they had. Nor was there any reason to believe that replacing
this particular juror with an alternate would compromise the
fairness or impartiality of the jury.
Second Circuit has affirmed trial judges' decisions to
exercise their discretion to remove jurors under a wide
variety of circumstances, " United States v.
Rodriguez, 1998 WL 26189, at *7 (S.D.N.Y. Jan. 26,
1998), including the circumstance presented here, where a
tardy juror delays the entire trial. In United States v.
Chang, 131 F.3d 132 (2d Cir. 1997), for example, the
district court had dismissed and replaced a juror who was
forty minutes late on the last day of testimony. Applying an
abuse of discretion standard, the Second Circuit affirmed,
noting that "the district court did not abuse its
discretion by replacing a single late juror because there was
no evidence of 'undue impact on the jury.'"
United States v. Chang, 131 F.3d 132 (2d Cir. 1997)
(quoting United States v. Domenech, 476 F.2d 1229,
1232 (2d Cir. 1973)). Likewise in United States v.
Domenech, the Second Circuit affirmed a trial
judge's decision to dismiss a juror who was only ten
minutes late, over the defendant's objection. Explaining
that "we would have to strain much too far to discern
any bias or prejudice against the defendant in this episode,
" the Second Circuit held that the judge had not abused
his discretion. 476 F.2d at 1232.
circuits are in accord. In United States v.
McKinney, 17 F.3d 397 (9th Cir. 1994), for example, the
district court dismissed a juror after learning that juror
would be delayed due to car trouble. Noting that it had
previously "upheld district court decisions to dismiss
jurors when the decisions had some demonstrable relation to a
legitimate administrative interest of the court, " the
Ninth Circuit affirmed on the ground that "there was a
reasonable case here for avoiding trial delay through the
seating of the alternate." 17 F.3d at 397; see also
United States v. Manley, 203 F.3d 833 (9th Cir. 1999)
("[T]rial courts may dismiss jurors for
tardiness."); United States v. De Oleo, 697
F.3d 338, 342 (6th Cir. 2012) (affirming trial court's
decision to excuse juror prior to jury deliberations in light
of juror's desire to be present for beginning of her
school semester); United States v. Fajardo, 787 F.2d
1523, 1525 (11th Cir. 1986) (affirming trial court's
decision to dismiss a juror suffering from sinus discomfort
to avoid disruption of the trial).
it was well within my discretion to excuse the tardy juror,
and because no compromise to the parties' right to a fair
trial would arise from the substitution of juror number 13
(the first alternate) for juror ...