A federal judge cannot remove a deliberating juror and seat an alternate when there is a reasonable possibility the removal stems from that juror's view of the evidence. On October 15, 2026, in a published opinion, United States v. Le, No. 23-1814, the Ninth Circuit vacated convictions for first-degree murder, conspiracy to commit murder and a related gun charge for that reason. It held that the only permissible option was a mistrial, even though the defense had agreed to excuse the juror.
What happened
The government charged Hoang Xuan Le with murder under 18 U.S.C. § 1111, conspiracy to commit murder under 18 U.S.C. § 1117, and a firearm charge under 18 U.S.C. § 924(c) after a man's body was found in the Pacific Ocean following a boat trip off Southern California. At trial, the main dispute was whether Le acted with premeditation or shot the man in self-defense.
After more than three full days of deliberations, the foreperson told the judge that one juror could not continue. That juror wrote that deliberations had put her mental health "into a position that has become dangerous to me." When the judge asked questions the parties had drafted together, she confirmed that her distress was "based on pressure from other jurors to reach a specific verdict." A later note reported that she had thoughts of hurting herself to get out of the process.
The parties jointly agreed to excuse her, and the judge seated an alternate. In less than a full day, the new jury convicted Le on all three counts. He was sentenced to life in prison.
The rule
The Sixth Amendment guarantees a federal defendant a unanimous jury verdict, and Federal Rule of Criminal Procedure 31(a) says "[t]he verdict must be unanimous." Under Rule 23(b)(3), a court that "finds good cause to excuse a juror" after deliberations begin may accept a verdict from the remaining 11 jurors.
In the Ninth Circuit, good cause cannot rest on a juror's views of the merits. Under United States v. Symington, 195 F.3d 1080 (9th Cir. 1999), the question on appeal is whether "the record evidence discloses any reasonable possibility that the impetus for a juror's dismissal stem[med] from [her] views on the merits of the case." If so, the removal violated the Sixth Amendment. When there is no good cause, "the trial judge has only two options: send the jury back to continue deliberating or declare a mistrial."
What the court decided
The removal was error. The court acknowledged that the trial judge "faced a genuinely difficult situation" and that the juror could not have kept serving. But her own answers tied her distress to pressure about the verdict, and the rest of the record pointed the same way. Faced with a juror whose distress "both stemmed from her view of the prosecution's case and was severe enough to preclude her from continuing to deliberate," the court wrote, its caselaw required that "the only constitutionally permissible path forward was to declare a mistrial." Replacing her "was not among the permissible options."
Agreeing to the removal did not waive the issue. The government argued that Le gave up the claim when his lawyers agreed to excuse the juror. The court disagreed. It held that "a defendant cannot waive a challenge to a juror's removal when the removal violates Symington and runs afoul [of] the Sixth Amendment's unanimity guarantee." The court assumed the stricter plain-error standard applied and found every part of it met.
Federal jurisdiction reached the case. Le also argued that the death happened within three nautical miles of the California coast, outside federal jurisdiction. The court rejected that argument, holding that section 901(a) of the Antiterrorism and Effective Death Penalty Act of 1996 places the first three nautical miles from the shoreline within the special maritime and territorial jurisdiction of the United States. That part of the ruling means the case returns to the federal district court for further proceedings.
What it means for a federal trial
- Watch what happens to a struggling juror. If notes from the jury suggest a juror is being pushed toward a verdict, the reason for any removal matters. In the Ninth Circuit, a reasonable possibility that the removal is about the juror's view of the evidence is enough to make it unconstitutional.
- A joint agreement may not end the issue. Le holds that consenting to a removal that violates the unanimity guarantee does not waive the claim on appeal. Other circuits may see this differently, and Le binds only courts in the Ninth Circuit.
- The remedy is a new trial, not an acquittal. The convictions were vacated and the case was sent back for further proceedings.
Our guides to the federal case process and federal appeals explain what comes before and after a verdict.
Source: United States v. Le, U.S. Court of Appeals for the Ninth Circuit, No. 23-1814. Read the source
More court decisions
When Fraud Victims Count as Vulnerable: Tenth Circuit
In United States v. Hess, the Tenth Circuit upheld a vulnerable-victim increase where a fraud used low-cost offers to draw in victims with little money.
Third Circuit Sets a Test for Felon Gun Ban Challenges
The en banc Third Circuit held that a prior violent or threatening conviction can justify the federal felon gun ban, but a repeat DUI alone could not.
Chatrie v. United States: Getting Your Phone Location History Is a Fourth Amendment Search
The Court held that police conducted a Fourth Amendment search when they got a person's cell-phone location data from Google through a geofence warrant.