Petition for Writ of Certiorari — Rickey Johnson, aka Sealed Defendant 1, aka Neil Dawn Defarren, Petitioner v. United States

Supreme Court briefOct 10, 2025

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No. 25-_____

______________________________________________________________________________

In the

Supreme Court of the United States

_____________________________________________

Rickey Johnson,

-v-

Petitioner,

United States of America,

Respondent.

_____________________________________________

On Petition for a Writ of Certiorari to

The United States Court of Appeals

For the Second Circuit

__________________________________________________________________

PETITION FOR A WRIT OF CERTIORARI

__________________________________________________________________

Colleen P. Cassidy

Counsel of Record

Siobhan C. Atkins

Daniel Habib

Federal Defenders of New York, Inc.

Appeals Bureau

52 Duane Street, 10th Floor

New York, New York 10007

(212) 417-8742

Colleen_Cassidy@fd.org

Counsel for Petitioner

QUESTIONS PRESENTED

Whether the acknowledged violation of a federal criminal defendant’s right

to a jury of 12, under Fed. R. Crim. P. 23(b), can be harmless, a question

that divides the circuits.

II.

Whether this Court should overrule Williams v. Florida, 399 U.S. 78 (1970),

and hold, consistent with Ramos v. Louisiana, 590 U.S. 83 (2020), that the

Sixth Amendment right to trial by jury means a jury of 12.

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................................................................... i

TABLE OF CONTENTS ................................................................................................ ii

TABLE OF AUTHORITIES ......................................................................................... iv

INTRODUCTION .......................................................................................................... 1

OPINIONS BELOW ...................................................................................................... 3

JURISDICTION............................................................................................................. 3

RELEVANT PROVISIONS ........................................................................................... 3

STATEMENT OF THE CASE....................................................................................... 4

Petitioner’s Conviction by an 11-Person Jury in Violation of

Fed. Rule Crim. P 23(b). ..................................................................................... 4

II. The Second Circuit’s Split Decision Affirming the Conviction ......................... 6

III. The Denial of Rehearing En Banc ...................................................................... 8

REASONS FOR GRANTING THE PETITION ............................................................ 9

This Court Should Resolve the Circuit Conflict Over Whether the

Acknowledged Violation of a Federal Criminal Defendant’s Right to a

Jury of 12 Under Fed. R. Crim. P. 23(b) Can Be Harmless. ............................. 9

The Circuits Are Split. .................................................................................. 10

The Second Circuit Is Wrong and the Other Circuits are Right. ................ 13

II. Williams Is Unsupportable and Should be Overruled. ................................... 22

Williams Cannot Be Squared with Ramos and Is Egregiously Wrong. ...... 24

Williams Disregarded the Common Law Meaning of the Sixth

Amendment at the Time of Adoption. ....................................................... 26

The Jury Right at Adoption and Until Williams Meant a Jury of 12

Persons. ...................................................................................................... 27

Williams Has Significant Negative Consequences and No Reliance

Interests Justify Retaining It. ...................................................................... 30

III. These Issues are Critically Important, and This Case Is an Ideal Vehicle

for Resolving Them. .......................................................................................... 33

CONCLUSION............................................................................................................. 36

APPENDIX:

Opinion of the United States Court of Appeals for the Second Circuit

(September 6, 2025) ..................................................................................................... 1a

Order of the United States Court of Appeals for the Second Circuit Denying

Rehearing En Banc (July 14, 2025), with opinions .................................................. 65a

Transcript of the District Court Ruling .................................................................. 103a

iii

TABLE OF AUTHORITIES

Cases

Alleyne v. United States,

570 U.S. 99 (2013) .................................................................................................... 23

Apodaca v. Oregon,

406 U.S. 404 (1972) ........................................................................................ 2, 22, 24

Arizona v. Fulminante,

499 U.S. 279 (1991) ............................................................................ 2, 13, 14, 15, 20

Ballew v. Georgia,

435 U.S. 223 (1978) .................................................................................................. 32

Bondi v. VanDerStok,

145 S.Ct. 857 (2025) ................................................................................................. 34

Cunningham v. Florida,

144 S. Ct. 1287 (2024) ............................................................................ 10, 18, 25, 32

Delaware v. Van Arsdall,

475 U.S. 673 (1986) .................................................................................................. 20

Edwards v. Vannoy,

593 U.S. 255 (2021) .................................................................................................. 33

Gomez v. United States,

490 U.S. 858 (1989) .................................................................................................. 16

Gov’t of the Virgin Islands v. Hercules,

875 F.2d 414 (3d Cir. 1989)...................................................................................... 18

Graham v. Portuondo,

506 F.3d 105 (2d Cir. 2007)...................................................................................... 17

Green v. United States,

262 F.3d 715 (8th Cir. 2001) .................................................................................... 17

Janus v. Am. Fed’n of State, Cnty., & Mun. Emps., Council 31,

585 U.S. 878 (2018) .................................................................................................. 23

Khorrami v. Arizona,

143 S. Ct. 22 (2022) .......................................................................................... passim

Kotteakos v. United States,

328 U.S. 750 ............................................................................................................. 21

Neder v. United States,

527 U.S. 1 (1999) .............................................................................................. passim

Patton v. United States,

281 U.S. 276 (1930) ............................................................................................ 27, 29

Pennsylvania v. Finley,

481 U.S. 551 (1987) .................................................................................................. 17

Phillips v. State,

316 So. 3d 779 (Fla. Dist. Ct. App. 2021) ................................................................ 22

Ramos v. Louisiana,

590 U.S. 83 (2020) ............................................................................................ passim

Rassmussen v. United States,

197 U.S. 516 (1905) .................................................................................................. 29

Rauter v. United States,

871 F.3d 693 (7th Cir. 1989) .................................................................................... 17

Shepherd v. United States,

253 F.3d 585 ............................................................................................................. 17

Sullivan v. Louisiana,

508 U.S. 275 (1993) ........................................................................................ 7, 10, 21

Thompson v. Utah,

170 U.S. 343 (1898) ............................................................................................ 27, 29

United States v. Araujo,

62 F.3d 930 (7th Cir. 1995) .................................................................................. 9, 11

United States v. Curbelo,

343 F.3d 273 (4th Cir. 2003) ............................................................................ passim

United States v. Essex,

734 F.2d 832 (D.C. Cir. 1984) ............................................................................ 11, 20

United States v. F.J. Vollmer & Co., Inc.,

1 F.3d 1511 (7th Cir. 1993) ...................................................................................... 18

United States v. Gibson,

135 F.3d 257 (2d Cir. 1998)...................................................................................... 31

United States v. Ginyard,

444 F.3d 648 (D.C. Cir. 2006) .................................................................................. 11

United States v. Glover,

21 F.3d 133 (6th Cir. 1994) ...................................................................................... 31

United States v. Gonzalez-Lopez,

548 U.S. 140 (2006) .................................................................................................. 14

United States v. Guerrero-Peralta,

446 F.2d 876 (9th Cir. 1971) ................................................................................ 9, 11

United States v. Iasiello,

166 F.3d 212 (3d Cir. 1999)...................................................................................... 17

United States v. Johnson,

143 F.4th 184 (2025) .................................................................................................. 8

United States v. Li,

115 F.3d 125 (2d Cir. 1997)...................................................................................... 18

United States v. Patterson,

26 F.3d 1127 (D.C. Cir. 1994) .............................................................................. 9, 11

United States v. Paulino,

445 F.3d 211 (2d Cir. 2006)...................................................................................... 30

United States v. Rodriguez,

406 F.3d 1261 (11th Cir. 2005) ............................................................................ 1, 13

United States v. Simmons,

560 F.3d 98 (2d Cir. 2009)........................................................................................ 31

U.S. Sec. & Exch. Comm’n v. Sargent,

66 F.4th 11 (1st Cir. 2023) ....................................................................................... 17

United States v. Taylor,

498 F.2d 390 (6th Cir. 1974) ................................................................................ 9, 11

United States v. Vasquez,

7 F.3d 81 ................................................................................................................... 17

Weaver v. Massachusetts,

582 U.S. 286 (2017) .......................................................................................... passim

Williams v. Florida,

399 U.S. 78 (1970) ............................................................................................ passim

Wofford v. Woods,

969 F.3d 685 (6th Cir. 2020) .................................................................................... 22

Zedner v. United States,

547 U.S. 489 (2006) .................................................................................................. 16

Constitutional Provisions

U.S. Const., amend. VI .................................................................................................. 3

Statutes

18 U.S.C. § 875(c) ........................................................................................................... 4

18 U.S.C. § 3231 ............................................................................................................. 3

18 U.S.C. § 115(a)(1)(B) ................................................................................................. 4

18 U.S.C. § 115(b)(4) ...................................................................................................... 4

28 U.S.C. § 1291 ............................................................................................................. 3

Rules

Fed. R. Crim. P. 23(b) .......................................................................................... passim

Fed. R. Crim. P. 23, Advisory Committee Notes, 1944 Adoption .............................. 18

Fed. R. Crim. P. 23(b), Advisory Committee Notes, 1983 Amendments ................... 19

Fed. R. Crim. P. 24......................................................................................................... 5

Fed. R. Crim. P. 31(d) ................................................................................................. 17

vii

Fed. R. Crim. P. 32(i)(4)(A)(ii) ..................................................................................... 18

Other Authorities

Joel Prentiss Bishop, Commentaries on the Law of Criminal Procedure 532

(Boston, 1866) ........................................................................................................... 28

4 William Blackstone, Commentaries on the Laws of England 343 (Oxford, 1769) . 27

Brief for American Civil Liberties Union as Amicus Curiae at 9-14,

Khorrami v. Arizona, 143 S. Ct. 22 (2022) (available at 2022 WL 2704756)......... 28

Burn’s Abridgement, or the American Justice 380 (Dover, N.H., 2d ed. 1792) ......... 29

2 Richard Burn, A New Law Dictionary 45 (London, 1792)....................................... 29

Conductor Generalis: or, the Office, Duty and Authority of Justices of the Peace

393 (Woodbridge, N.J., 1764) ................................................................................... 28

2 Matthew Hale, Historia Placitorum Coronae: The History of the Pleas of the

Crown 293 (London, 1736) ....................................................................................... 27

Robert H. Miller, Comment, Six of One Is Not a Dozen of the Other: A

Reexamination of Williams v. Florida and the Size of State Criminal Juries,

146 U. Pa. L. Rev. 621 (1998) .................................................................................. 27

2 Joseph Story, Commentaries on the Constitution of the United States 588

(3d ed. 1858) ............................................................................................................. 28

Of Juries, in 2 Collected Works of James Wilson 985

(K. Hall & M. Hall eds. 2007) .................................................................................. 28

viii

INTRODUCTION

The Second Circuit affirmed Petitioner’s conviction by an 11-member jury

over his objection – a conceded error under Federal Rule of Criminal Procedure

23(b) – on the ground that this error was harmless. In acknowledged conflict with

the Fourth Circuit in United States v. Curbelo, 343 F.3d 273, 281, 285 (4th Cir.

2003), the divided panel held that only constitutional error can be structural and,

because there is no Sixth Amendment right to a 12-member jury under Williams v.

Florida, 399 U.S. 78 (1970), harmless error review must apply. Proceeding from

that erroneous premise, the panel majority then simply reviewed the trial evidence

itself and concluded that a 12th juror would not have changed the outcome –

although even the deficient jury had acquitted on one count.

The Second Circuit’s holding also conflicts with decisions in the Sixth,

Seventh, Ninth, and D.C. Circuits holding that this error – proceeding with an 11member jury without consent before deliberations, in violation of Rule 23(b) – is

structural or per se reversible. Moreover, in creating a 5-1 split on this precise

question, the Second Circuit also deepened a circuit conflict over the broader issue –

whether a nonconstitutional error can ever be structural. See, e.g., United States v.

Rodriguez, 406 F.3d 1261, 1286 (11th Cir. 2005) (Tjoflat, J., dissenting from denial

of rehearing en banc) (documenting the conflict).

The Second Circuit was wrong. As the dissent explained, there is no rule that

only a constitutional error can be structural, and the majority cited no decision by

this Court holding that a nonconstitutional error cannot be structural. Even if

Williams stands, and there is no Sixth Amendment right to a jury of 12, there is a

fundamental, substantial right to a jury of 12 in a federal felony trial under the

Rule, derived from centuries of common law tradition. The effects of a violation of

this right – trial by 11 jurors instead of 12 – “are simply too hard to measure,”

Weaver v. Massachusetts, 582 U.S. 286, 296 (2017), so the error “def[ies] analysis by

‘harmless error’ methods.” Arizona v. Fulminante, 499 U.S. 279, 307-08 (1991). This

is quintessential structural error, regardless of Williams, and certiorari should be

granted to resolve this dispute.

The Court could also resolve this dispute – and others as well – by finally

overruling Williams, a decision that cannot be reconciled with Ramos v. Louisiana,

590 U.S. 83 (2020). If the jury right meant a unanimous jury at the time of the

Sixth Amendment’s adoption, id., so did it mean a jury of 12. This was widely

accepted and understood for centuries before adoption, at adoption, and for

centuries after, until Williams jettisoned the right to 12 jurors in state trials based

on dubious social-science research. See Khorrami v. Arizona, 143 S. Ct. 22, 23-25

(2022) (Gorsuch, J., dissenting from denial of certiorari). In overruling Apodaca v.

Oregon, 406 U.S. 404 (1972) – which relied on Williams – Ramos emphatically

rejected Williams’s reasoning and held that the public meaning of the right to a jury

trial at the time of the Sixth Amendment’s adoption is what matters, and the

ancient right’s attributes cannot be “reassessed” as to whether they are “important

enough” or serve a function as measured by social statistics. 590 U.S. at 98-100. On

this same reasoning, Williams cannot stand. It is now undermining the federal right

to a jury of 12, and should be overruled.

OPINIONS BELOW

The Second Circuit’s split opinion is reported at 117 F.4th 28 and appears at

Pet.App.1a. The order denying en banc review and the opinions of the full Court of

Appeals concurring in and dissenting from the order are published at 143 F.4th 184

and appear at Pet.App.65a. The district court’s oral ruling appears at Pet.App.103109a.

JURISDICTION

The Second Circuit entered judgment on September 6, 2024, and denied

rehearing on July 14, 2025. The district court had jurisdiction under 18 U.S.C.

§ 3231; the Second Circuit did under 28 U.S.C. § 1291; and this Court does under

§ 1254(1).

RELEVANT PROVISIONS

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

and public trial, by an impartial jury . . . .” U.S. Const., amend. VI.

Fed. R. Crim. P. 23(b) mandates:

(1) In General. A jury consists of 12 persons unless this rule provides otherwise.

(2) Stipulation for a Smaller Jury. At any time before the verdict, the parties

may, with the court’s approval, stipulate in writing that:

(A) the jury may consist of fewer than 12 persons; or

(B) 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.

(3) Court Order for a Jury of 11. After 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.

STATEMENT OF THE CASE

Petitioner’s Conviction by an 11-Person Jury in Violation of Fed.

Rule Crim. P 23(b).

Petitioner Rickey Sean Johnson was tried on two counts of transmitting

threatening communications against Fox News personalities Greg Gutfield and

Laura Ingraham, in violation of 18 U.S.C. § 875(c), and two counts of threatening

United States officials, Joe Manchin and Lauren Boebert, in violation of 18 U.S.C.

§§ 115(a)(1)(B) and (b)(4). Pet.App.3a. Evidence of all the threats was essentially

the same: videos of Petitioner sitting at home in front of his television, watching Fox

News and ranting that he was going to kill each of them. Pet.App.41-42a;

C.A.App.570-586, 588. He posted the videos on his Instagram account, which had

one follower, and tagged Manchin, Boebert, Gutfeld, the Justice Department, and

Ron De Santis, who was not mentioned in the videos. Pet.App.4-6a, 62a. He did not

forward the videos to anyone. C.A.App.355. He sent an Instagram message to

Gutfeld stating that Gutfeld and other Fox News personalities would be killed,

which brought him to the attention of authorities. Pet.App.4a.

At trial, the only disputed issue was Petitioner’s intent. The government

bore the burden of proving that all the statements were “true threats” – that is, that

they were intended to be taken as serious threats to inflict bodily injury or to kill

and that a reasonable person under the circumstances would understand them as

such. The § 115 counts required additional proof of intent to intimidate or interfere

with the duties of a federal official. Pet.App.19-20a. The defense was that the

statements were hyperbolic rants not intended to be taken seriously. C.A.App.45456.

None of the subjects of the statements testified. Pet.App.3a. Other than the

videos, the only other evidence came from the Fox News security chief and a Capitol

Police officer, who viewed the statements and traced them to Petitioner, and the

NYPD officer who arrested Petitioner and traced his cellphone to the Instagram

account. C.A.App.109-223, 249-316, 343, 365-75. Therefore, the jury had only the

videos themselves and the circumstances of their posting to decide whether the

government proved intent. Pet.App.63a.

In a trial consisting of less than two days of testimony, the district court

dismissed three seated jurors – two jurors and one of two alternates – before

deliberations began and proceeded with 11 jurors over defense objection. Pet.App.710a,42-43a. The court insisted, incorrectly, that it had the authority to do so under

Fed. R. Crim. P. 24. Pet.App.10a,43a,105a,107a. Proceeding with 11 jurors before

deliberations without consent in fact violated Rule 23(b), but the district court

denied Petitioner’s motion for a mistrial. Pet.App.10a.

The 11-member jury deliberated for over two days. Pet.App.45a. On the

second day of deliberations, the jury asked whether it could consider the defendant

not guilty by virtue of mental defect and whether it had to convict him if it thought

he was mentally ill. Pet.App.44a. At 5:40 p.m., the jury reached a partial verdict of

guilt on the Manchin, Gutfield and Ingraham counts but could not reach agreement

on the Boebert count. Id. The court instructed the jury to keep deliberating and the

next day at 5:08 p.m., the jury acquitted Petitioner on the Boebert count.

Pet.App.44-45a.

II.

The Second Circuit’s Split Decision Affirming the Conviction

A divided panel of the Second Circuit affirmed Petitioner’s conviction,

holding that the conceded violation of Rule 23(b) was not structural error and was

harmless. Pet.App.1a. In doing so, the Second Circuit became the only circuit to

apply harmless error analysis to this error and openly split with the Fourth Circuit

in Curbelo, 343 F.3d 273, and the four other circuits that had previously reversed

Rule 23(b) errors without harmless error analysis. Pet.App.15-18a. The panel

majority (Menashi, J. and Engelmayer, S.D.N.Y., by designation) held, contrary to

Curbelo, that only constitutional errors can be structural and that Williams, 399

U.S. 78, held that a 12-member jury was not required by the Sixth Amendment.

PetApp.14-18a. Therefore, the majority held, harmless error had to apply.

Pet.App.15a. The majority cited no Supreme Court precedent holding that only

constitutional error could be structural—only cases holding that not all

constitutional error is structural. Pet.App.14-15a (citing Neder v. United States, 527

U.S. 1, 7 (1999)).

Acknowledging Justice Gorsuch’s view that Williams was wrongly decided

and should be overruled, the panel majority held that, so long as Williams remained

the law, it was “bound to follow precedent.” Pet.App.18a. The majority opined

further that after Williams, this Court no longer considered the federal right to a

12-member jury under rule 23(b) to be “even a substantial right.” Pet.App.1314a,18a. It cited no decision of this Court to support that statement—only a prior

Second Circuit opinion. Id.

The panel majority then applied weight-of-the-evidence review to find the

unlawful dismissal of the 12th juror harmless. It simply reviewed the evidence,

found itself that it proved intent on all counts, and concluded that no reasonable

jury could have acquitted—even though the 11-member jury delivered a partial

acquittal on one count based on substantially similar evidence. Pet.App.19-20a.

Judge Chin dissented. In his view, a violation of Rule 23(b) is structural

error because, even if not constitutional, the right to a 12-person jury in a federal

trial is a “substantial right,” and the repercussions of its denial “are simply too hard

to measure” and “are necessarily unquantifiable and indeterminate.” Pet.App.4752a (citing Weaver, 582 U.S. at 295, and Sullivan v. Louisiana, 508 U.S. 275, 282

(1993)). In a thorough historical analysis, Judge Chin documented the centrality of

the 12-person jury to the jury-trial right “[a]t common law, at the time of the Sixth

Amendment’s adoption, and until recent history.” Pet.App.55-58a. The dissent

pointed out that no Supreme Court or Second Circuit case holds that a

nonconstitutional error cannot be structural. Pet.App.52-54a. Further, the dissent

concluded that even if some form of harmless error analysis could apply here, the

error could not have been harmless given the jury’s struggle to reach a verdict, its

split verdict, the circumstances of Petitioner’s statements, the close question on

intent, and the lack of other evidence. Pet.App.59-64a.

III.

The Denial of Rehearing En Banc

Petitioner sought en banc review, principally on the grounds that the decision

was contrary to all the other circuits that had considered the issue; that the

majority’s rule that only constitutional error could be structural was unfounded and

not supported by Neder, 527 U.S. at 7 or other precedent; and that this was

quintessential structural error because its effects were “simply too hard to

measure,” Weaver, 582 U.S. at 296.

The Second Circuit denied en banc review, generating three opinions, two

concurring and one dissenting, plus a statement from dissenting Judge Chin.

Pet.App.65a. Judge Menashi (joined by Livingston, C.J., and Sullivan and Park,

J.J.) concurred and doubled down on his panel majority opinion, emphasizing its

holding that “a structural error must involve the violation of a constitutional right.”

Pet.App.74-80a. Judge Merriam (joined by Lee, Robinson, Perez, and Nathan, J.J.)

dissented from denial of rehearing in an opinion that agreed with Judge Chin’s

dissent, disagreed with the panel majority’s ruling that only constitutional error

could be structural, and concluded that the denial of a 12-person jury in violation of

Rule 23(b) was structural error requiring a new trial. Pet.App.85-102a. Judge

Lohier (joined by Bianco and Kahn, J.J.) concurred in the denial of en banc review

on the ground that the Circuit was bound by Williams, and that the Circuit

interpreted Williams as meaning that the federal right to a jury of 12 was no longer

even a “substantial right.” Pet.App.69-70a. It characterized the panel majority’s

view that non-constitutional error could never be harmless as dicta. Pet.App.72a.

REASONS FOR GRANTING THE PETITION

This Court Should Resolve the Circuit Conflict Over Whether the

Acknowledged Violation of a Federal Criminal Defendant’s Right

to a Jury of 12 Under Fed. R. Crim. P. 23(b) Can Be Harmless.

The Second Circuit created a clear conflict with five other circuits in holding

that the district court’s dismissal of the 12th juror without consent, in undisputed

violation of Fed. R. Crim. P. 23(b), was harmless. In particular, the majority opinion

openly disagreed with the Fourth Circuit’s holding in United States v. Curbelo, 343

F.3d 273, 281, 285 (4th Cir. 2003) that this error is structural, and not subject to

harmless-error analysis, because it is a fundamental error that “affects the very

framework within which the trial proceeds” and has repercussions that are

“necessarily unquantifiable and indeterminate.” Several other circuits have likewise

concluded that a Rule 23(b) violation requires reversal without considering harm.

United States v. Araujo, 62 F.3d 930 (7th Cir. 1995); United States v. Patterson, 26

F.3d 1127 (D.C. Cir. 1994); United States v. Taylor, 498 F.2d 390, 392 (6th Cir.

1974); United States v. Guerrero-Peralta, 446 F.2d 876, 877 (9th Cir. 1971). The

Second Circuit rejected Curbelo and its reasoning, as well as the other decisions, see

Pet.App.16a n.4, on the ground that proceeding with 11 jurors in violation of the

Rule is not structural because only constitutional errors can be structural. And it

was bound by Williams v. Florida, 399 U.S. 78 (1970), to hold that violating the

defendant’s right to a jury of 12 under the Rule is not a constitutional error because

there is no Sixth Amendment right to a 12-member jury.

This Court should resolve this dispute by holding that this fundamental error

– proceeding to verdict with only 11 jurors in direct contravention of the Rule – is

structural because “the effects of the error are simply too hard to measure.” Weaver,

582 U.S. at 296. Alternatively, this Court should hold that a 12-member jury is

constitutionally required and finally overrule Williams, a decision that is clearly

wrong and has been hanging by a thread since Ramos v. Louisiana, 590 U.S. 83. See

Cunningham v. Florida, 144 S. Ct. 1287 (2024) (Gorsuch, J., dissenting from denial

of certiorari); Khorrami, 143 S. Ct. at 23 (Gorsuch, J., dissenting from denial of

certiorari).

A. The Circuits Are Split.

In Curbelo, the Fourth Circuit held that this exact violation of Rule

23(b) – proceeding with 11 jurors before deliberations without consent – is

structural error, requiring reversal without any showing of prejudice. Id. at

280. This is because “it affects the very ‘framework within which the trial proceeds,

rather than simply . . . the trial process itself.’” 343 F.3d at 281 (quoting Neder, 527

U.S. at 8). And like other structural errors, Curbelo reasoned, a Rule 23(b) violation

has repercussions that are “necessarily unquantifiable and indeterminate.” Id.

(quoting Sullivan, 508 U.S. at 282). Curbelo specifically rejected the government’s

argument that only constitutional errors could be structural. It concluded that this

Court had never so held and that the government’s legal authorities for that

proposition only “hold that not every constitutional error is a structural error; none

holds that a structural error need be premised on a constitutional deprivation.” 343

F.3d at 280 n.6. Curbelo reasoned that the jury right’s constitutional underpinnings

and the “critical importance” of 12-member jury at common law made Rule 23(b)’s

policy a strong one, conferring a substantial federal right. Id. at 279-83. And its

violation was the kind of error whose harm could not be measured by traditional

error analysis: “We simply cannot know what effect a twelfth juror might have had

on deliberations. Attempting to determine this would involve pure speculation.” Id.

at 281.

Curbelo cited several other circuit decisions holding violations of Rule 23(b)

reversible without harmless-error analysis. E.g., Patterson, 26 F.3d 1127; United

States v. Essex, 734 F.2d 832 (D.C. Cir. 1984) (both holding structural error the

erroneous dismissal of the 12th juror after deliberations began under Rule 23(b)(3));

Araujo, 62 F.3d 930 (reversing dismissal of juror during deliberations, and vacating

conviction without considering prejudice); Taylor, 498 F.2d at 392 (rejecting

harmless-error review for Rule 23(b) violation of obtaining only an oral stipulation);

Guerrero-Peralta, 446 F.2d at 877 (same). See also United States v. Ginyard, 444

F.3d 648, 655 (D.C. Cir. 2006) (dismissal of 12th juror in violation of Rule 23(b)

required reversal, even though other trial errors were harmless because of the

“overwhelming nature of the government’s evidence”).

Until the Second Circuit’s decision in this case, no circuit had held that this

violation of Rule 23(b) could be harmless; indeed, numerous circuits had concluded

that this error was per se reversible. But now the Second Circuit has opened a

square split with its conclusion that this error must be subject to harmless-error

analysis because it is not a constitutional error under Williams, and only

constitutional errors can be structural. In its opinion, the majority expressly

disagreed with Curbelo (and the other circuits) and with Curbelo’s reasoning.

Pet.App.15-16a. It disagreed with Curbelo that the federal right to a 12-member

jury under Rule 23(b) was an important one, dismissing it as not “even a

substantial right” after Williams. Pet.App.13, 18. It further concluded, contrary to

Curbelo, 343 F.3d at 281, that it could “know what effect a twelfth juror might have

had on deliberations” – by simply weighing the trial evidence itself, deciding that it

proved Petitioner’s intent, and concluding that any 12th juror would have seen it

the same way.

The Second Circuit thus created an open and irreconcilable split in the

Circuits as to whether the deprivation of a federal defendant’s right to a 12-member

jury under Rule 23(b) is structural error requiring reversal, or whether such a

deficient verdict may be affirmed if a panel of circuit judges simply weighs the trial

evidence and decides that a 12th juror would not have changed the outcome. The

Second Circuit denied rehearing en banc and only this Court can resolve the

conflict.

In addition to creating a clear circuit split on whether a Rule 23(b) violation

is structural error, the Second Circuit’s decision deepened existing confusion in the

circuits on a broader question: whether an error must be constitutional to be

structural. While several circuits have held this error and other nonconstitutional

errors to be structural, other circuit courts have occasionally held in other contexts

that only constitutional errors can be structural. See, e.g., Rodriguez, 406 F.3d at

1285 n.6 (Tjoflat, J., dissenting from denial of rehearing en banc) (documenting the

intra- and inter-circuit conflicts). Footnotes in Judge Menashi’s two opinions in this

case demonstrate this confusion: note 4 in the majority opinion acknowledges the

circuits requiring reversal of a Rule 23(b) violation without harmless error analysis,

while note 1 in his concurrence in denial of rehearing en banc review other circuit

decisions holding that other errors were not structural because they were not

constitutional. Pet.App.16a, 83a. This Court could usefully shed some light on this

question as well.

B. The Second Circuit Is Wrong and the Other Circuits are Right.

The Second Circuit was wrong to hold that the violation of a federal

defendant’s right to a 12-person jury under Rule 23(b) is subject to harmless error

because it is not a constitutional right. As both the dissent and Curbelo pointed out,

this Court has never held that an error must be constitutional to be structural.

Pet.App.52-53a; Curbelo, 343 F.3d at 280 n.6. The salient distinction, as this Court

has explained, is between “trial error” and “structural error.” Arizona v.

Fulminante, 499 U.S. 279, 307-08 (1991). Trial error is “error that occurred during

the presentation of the case to the jury, and which may therefore be quantitatively

assessed in the context of the other evidence presented in order to determine

whether its admission was harmless.” Id. Structural error, on the other hand,

encompasses “structural defects in the constitution of the trial mechanism, which

defy analysis by ‘harmless-error’ methods.” Id. at 310.

“[T]he defining feature of a structural error is that it affects the framework

within which the trial proceeds, rather than being simply an error in the trial

process itself.” Weaver, 582 U.S. at 295; see Pet.App.100a. One category of

structural error is that which “defies analysis by harmless error standards” because

“the effects of the error are simply too hard to measure, such as “when a defendant

is denied the right to select his or her own attorney,” and “the precise ‘effect of the

violation cannot be ascertained.’” Id. at 295-96. Such an error is structural not

because it is constitutional – a constitutional error may be trial error and subject to

harmless error analysis, Neder, 527 U.S. at 8 – but because it is “impossible to know

what different choices the rejected counsel would have made, and then to quantify

the impact of those different choices on the outcome of the proceedings.” United

States v. Gonzalez-Lopez, 548 U.S. 140, 150 (2006). Harmless error analysis in such

a case would be “a speculative inquiry into what might have occurred in an

alternate universe.” Id.

Under this established definition of structural error, the violation of the

defendant’s right to a 12-member jury without his consent is quintessential

structural error. The impact of the district court’s unlawful dismissal of the 12th

juror cannot be assessed “in the context of the other evidence presented” without

pure speculation. As the dissent explained: “Simply put, an appellate court cannot

predict with any degree of certainty” how the 12th juror “with his or her varied life

experiences and personal beliefs, would have viewed the evidence presented against

[Petitioner] and participated in deliberations with eleven individuals from different

walks of life.” Pet.App.48a.

The majority undertook no analysis of whether the effects of the error could

be “quantitatively assessed in the context of the evidence presented,” Fulminante,

499 U.S. at 308-09, or whether the effects were “simply too hard to measure,”

Weaver, 582 U.S. at 294 – the test for whether it was ordinary trial error trial or

structural error. Instead, it preempted all of that by ruling that only constitutional

error can be structural and under Williams, there is no constitutional right to a 12member jury. Thus, the majority held, a court must apply harmless-error analysis,

whether or not it can be applied in a way that makes sense.

The majority’s new rule that only constitutional error can be structural error

hangs on a single line from Neder, 527 U.S. at 7, stating that structural error

encompasses “a limited class of fundamental constitutional errors that defy analysis

by ‘harmless error’ standards.” Pet.App.14, 16a & n.4. But this sentence did not

address whether a nonconstitutional error could be structural, because the error in

Neder – failure to instruct the jury on an element of the offense – was indisputably

constitutional. Neder simply concluded that not all constitutional errors are

structural: The failure to instruct the jury was trial error and not the kind of error

that defies harmless error analysis. 527 U.S. at 14-15. Because the missing element

in Neder was undisputed and established by overwhelming evidence, traditional

harmless error analysis worked there to show that the correct jury charge could not

have made a difference. Id. at 17. As such, Neder simply does not support the panel

majority’s theory and the line that it relied on was dicta. “The observation that not

every constitutional error qualifies as structural error does not mean that only

errors premised on a constitutional error can so qualify.” Pet.App.53a (Chin, J.,

dissenting); see also Pet.App.91a (Merriam, J., dissenting from denial of reh’g en

banc) (“Neder observes that certain fundamental constitutional errors can affect

substantial rights and defy harmless error review; it does not instruct that only

constitutional errors can do so”).

The panel majority’s new rule that a structural error must be a constitutional

error is at odds with several decisions of this Court and the circuits (including the

Second) holding that violations of certain statutes or rules are not subject to

harmless error analysis. This Court has ruled that harmless error analysis does not

apply to some non-constitutional errors. Zedner v. United States, 547 U.S. 489

(2006), held that a district court’s failure to make findings required by Speedy Trial

Act was not subject to harmless error review because the error would virtually

always be found harmless and that would undermine the statute’s goals. And in

Gomez v. United States, 490 U.S. 858, 875-76 (1989), this Court held that harmless

error analysis did not apply where a magistrate judge had chosen a felony jury over

the defendant’s objection in violation of the Federal Magistrates Act.

Circuit decisions have likewise recognized that some non-constitutional

errors are not subject to harmless error analysis. There is no constitutional right to

counsel on a 28 U.S.C. § 2255 motion, Pennsylvania v. Finley, 481 U.S. 551, 555

(1987), but every circuit to consider the question has held that denial of counsel to

an indigent petitioner at an evidentiary hearing, in violation of Rule 8(c) of the

Rules Governing § 2255 Proceedings, “is not subject to harmless error review and

requires vacatur or reversal.” Graham v. Portuondo, 506 F.3d 105, 107 (2d Cir.

2007); accord Green v. United States, 262 F.3d 715 (8th Cir. 2001); Shepherd v.

United States, 253 F.3d 585, 587-88 (11th Cir. 2001); United States v. Iasiello, 166

F.3d 212, 214 (3d Cir. 1999); United States v. Vasquez, 7 F.3d 81, 85-86 (5th Cir.

1993). “One can only speculate on what the record might have been had counsel

been provided.” United States v. Vasquez, 7 F.3d at 85; see also Rauter v. United

States, 871 F.3d 693, 697 (7th Cir. 1989) (impossible to know what the outcome

would have been had counsel been appointed).

Likewise, the First, Third, and Seventh Circuits have held that the right to

poll the jury—codified in Federal Rule of Criminal Procedure 31(d)—is an “absolute

right” that requires reversal “per se.” See U.S. Sec. & Exch. Comm’n v. Sargent, 66

F.4th 11, 12 1st Cir. 2023) (“we have long held that denial of the right

under Federal Rule of Criminal Procedure 31(d) to poll each juror individually in a

criminal case is per se reversible error”); United States v. F.J. Vollmer & Co., Inc., 1

F.3d 1511, 1522 (7th Cir. 1993); Gov’t of the Virgin Islands v. Hercules, 875 F.2d

414, 419 (3d Cir. 1989). Without the poll in open court, it is impossible to “reveal the

effects of any undue coercion” that may occur in the jury room. See Hercules, 875

F.2d at 419. The Second Circuit has also held that “[a]lthough a defendant’s right to

a sentencing allocution [under Fed. R. Crim. P. 32(i)(4)(A)(ii)] is a matter of criminal

procedure and not a constitutional right … it is nonetheless considered an ‘absolute

right’ in the federal courts,” requiring automatic reversal if violated. United States

v. Li, 115 F.3d 125 (2d Cir. 1997).

The common thread in these cases is a rule or statute protecting a

fundamental but nonconstitutional right, where the effects of the violation cannot

be measured by harmless error analysis. And the right to 12 jurors in a federal

criminal trial is a substantial, fundamental right, based on centuries of the

common-law tradition of 12-member juries in criminal cases. Pet.App.55-58a;

Curbelo, 343 F.3d at 283. The dissent below correctly concluded that a 12-member

jury is “a substantial right in the context of a federal criminal trial.” Pet.App.55a.

Rule 23(b) was promulgated on the understanding that the Sixth Amendment

required a 12-member jury, which was the law until Williams overturned 200 years

of precedent and held that state juries could be fewer than 12. See Fed. R. Crim. P.

23, Advisory Committee Notes, 1944 Adoption (“The rule is a formulation of the

constitutional guarantee of trial by jury”). That understanding, which underpins the

Rule, was itself based on centuries of common-law tradition. See Cunningham, 144

S. Ct. 1287 (Gorsuch, J., dissenting from denial of certiorari). And Williams did not

affect Rule 23(b), applicable to federal felony defendants, which still requires a jury

of 12. Even when the Rule was amended in 1983, after Williams, it permitted 11

jurors only in extremely limited circumstances – only upon written consent of both

parties before deliberations, and for good cause only after deliberations have begun.

Moreover, the Advisory Committee took pains to clarify in its Notes that an 11member jury should be extremely rare. Explaining that the Justice Department had

pressed for the amendment after three months-long racketeering trials resulted in

mistrials because of the unavoidable loss of a juror during deliberations, the

Committee advised that permitting 11 jurors after deliberations was an “unusual

step” that should only occur rarely, “where the trial has been a lengthy one.” Fed. R.

Crim. P. 23(b) Advisory Committee Notes, 1983 Amendments. This history

demonstrates that the right to 12 jurors in a federal trial is a fundamental right,

not a mere technicality that can be brushed off as “not even substantial” after

Williams.

Dismissing Rule 23(b)’s right to a 12-person jury as insubstantial, the

violation of which can be harmless so long as the reviewing court concludes the

defendant was guilty, directly undermines the Rule. The Rule does not permit the

court to dismiss the 12th juror and proceed with 11 before deliberations without the

written consent of the defendant. If the 12th juror is lost for any reason before

deliberations, and the defendant does not consent to proceed with 11 jurors, a

mistrial must be declared and a new trial ordered. If it is not, then this must be

corrected on appeal by reversal and a new trial order.

And violating Rule 23(b)’s 12-juror mandate not only affects a substantial

right: It is also the exact type of error that cannot be assessed via typical harmlesserror review. Assessing how a 12th juror would have affected deliberations is simply

impossible, as jury secrecy principles make deliberations a black box. See Curbelo,

343 F.3d at 281; Essex, 734 F.2d at 845 (“[i]n cases involving secret jury

deliberations[,] it is virtually impossible for a defendant to demonstrate actual

prejudice”); Pet.App.49a (Chin, J., dissenting) (“Given the safeguards preventing

disclosure of what goes on in the jury room … it is impossible for this Court to

determine, as would be required if reviewing for harmless error, whether the guilty

verdict actually rendered in this trial was surely unattributable to the Rule 23(b)

error”). But the panel majority’s new rule skipped over any analysis of just how a

panel of judges could decide that a defendant’s conviction by only 11 jurors over his

objection was harmless.

Instead, the majority simply appointed itself the 12th juror. With scant

analysis, the majority conducted an inapt review of the evidence, one similar to

what is done when assessing how a typical trial error like an evidentiary error or

erroneous jury instruction might have affected the jury’s consideration of the

evidence. See e.g., Fulminante, 498 U.S. 298-300 (analyzing the impact of erroneous

admission of a coerced confession on the evidence at trial); Delaware v. Van Arsdall,

475 U.S. 673, 684 (1986) (harmlessness of erroneous preclusion of cross20

examination depends on factors like “the importance of the witness’ testimony,” “the

presence or absence of evidence corroborating or contradicting” the witness, “the

extent of cross-examination otherwise permitted,” and “the overall strength of the

prosecution’s case.”). Without any trial error to assess in the context of the evidence,

the majority simply weighed all the evidence, decided it proved Petitioner’s guilt,

and jumped to the conclusion that any rational juror would have agreed.

This was precisely the wrong analysis and proves the point that this error is

not amenable to harmless error review. Harmless error review of trial error asks

“not were [the jurors] right in their judgment, regardless of the error or its effect

upon the verdict,” but “what effect the error had or reasonably may be taken to have

had on the jury’s decision.” Kotteakos v. United States, 328 U.S. 750, 764-65 (1946).

“The inquiry cannot be merely whether there was enough to support the result,

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

itself had substantial influence.” Id.; see also Sullivan, 508 U.S. at 279 (“The

inquiry, in other words, is not whether, in a trial that occurred without the error, a

guilty verdict would surely have been rendered, but whether the guilty verdict

actually rendered in this trial was surely unattributable to the error.”).

The panel majority’s determination to fit a square peg into a round hole led to

an absurd outcome. It weighed the evidence itself and decided that it proved all

counts. From this, it concluded that no rational juror could find otherwise, even

though the 11-member jury had in fact acquitted Petitioner of one of the counts, on

evidence virtually identical to the other three counts. Moreover, the only disputed

issue in this case was Petitioner’s intent, a quintessential jury judgment. The

majority here merely substituted its own judgment for that of a legally constituted

jury.

II.

Williams Is Unsupportable and Should be Overruled.

In Ramos v. Louisiana, 590 U.S. 83, this Court held that the Sixth Amendment

right to trial by jury includes the right to a unanimous jury verdict because

unanimity was required at common law and the Sixth Amendment incorporated the

essential features of the common law jury right. In so holding, Ramos overruled

Apodaca v. Oregon, 406 U.S. 404, which had held that the Sixth Amendment did not

require jury unanimity in state trials. In the five years since Ramos, members of

this Court and others have questioned the continuing vitality of Williams, on which

Apodaca relied. See Khorrami, 143 S. Ct. at 23 (Gorsuch, J., dissenting from denial

of certiorari) (“Williams was wrong the day it was decided, [and] it remains wrong

today”); Pet.App.18a (noting that “there is some support for that position” that

“Williams was wrongly decided”); Wofford v. Woods, 969 F.3d 685, 707 n.27 (6th Cir.

2020) (“Williams may no longer be completely sound after Ramos”); Phillips v.

State, 316 So. 3d 779, 788 (Fla. Dist. Ct. App. 2021) (Makar, J., concurring) (“the

issue of jury size under the Sixth Amendment may be ripe for re-evaluation” after

Ramos). Williams simply cannot be squared with Ramos. Applying the same

historical analysis that this Court applied in Ramos, there is no daylight between

the right to a unanimous jury and the right to 12 jurors: both were features of the

common-law right to a jury trial at the time the Sixth Amendment was adopted.

Williams, which employed the same analysis as the “gravely mistaken” and

“egregiously wrong” Apodaca, should be overruled. Ramos, 590 U.S. at 106, and 124

(Kavanaugh, J., concurring).

The “force of stare decisis is at its nadir in cases concerning [criminal]

procedur[e] rules that implicate fundamental constitutional protections.” See

Alleyne v. United States, 570 U.S. 99, 116 n.5 (2013). Accord Ramos, 590 U.S. at

105-06 (stare decisis “is at its weakest when we interpret the Constitution” because

a mistaken constitutional interpretation is “practically impossible” to correct by

other means). In deciding whether to overrule precedent, the Court considers “the

quality of the decision’s reasoning; its consistency with related decisions; legal

developments since the decision, and reliance on the decision.” Ramos, 590 U.S. at

106. Or as Justice Kavanaugh, concurring in Ramos, put it: precedent should be

discarded: (1) if it is “egregiously wrong” as measured by “the quality of the

precedent’s reasoning, consistency and coherence with other decisions, changed law,

changed facts, and workability;” (2) if it has “caused significant negative

jurisprudential or real-world consequences;” and (3) if overruling it would not

“unduly upset reliance interests.” 590 U.S. at 121-22 . See also Janus v. Am. Fed’n

of State, Cnty., & Mun. Emps., Council 31, 585 U.S. 878, 917-18 (2018) (similar

factors). Every one of these factors favors discarding Williams. This Court should

overrule Williams, just as it did Apodaca.

A. Williams Cannot Be Squared with Ramos and Is Egregiously

Wrong.

In Ramos, this Court reviewed the history of the common law right to trial by

jury and concluded that for 400 years before the founding, it had been widely

understood to require jury unanimity for conviction. 590 U.S. at 90-92. So “at the

time of the Amendment’s adoption, the right to a jury trial meant a trial in which

the jury renders a unanimous verdict.” Id. at 98 (emphasis in original). It was this

public meaning of the right to a jury trial that the drafters preserved in the Sixth

Amendment’s right to “trial by an impartial jury.” Id.

Ramos overruled Apodaca v. Oregon, 406 U.S. 404, and its “strange turn”

away from this common understanding and 120 years of post-founding precedent to

hold that the Sixth Amendment jury right did not require unanimity. 590 U.S. at

93. Ramos firmly rejected Apodaca’s reasoning: both its inference of intent from the

drafters’ deletions of language like “unanimity” from the jury trial right and its

employment of “a breezy cost-benefit analysis” to conclude that unanimity was not

required to serve the purpose of the jury right. Id. at 97-100; see Apodaca, 406 U.S.

at 408, 410-11. As to the drafting history, Ramos reasoned that the drafters might

just as well have intended to reduce surplusage because unanimity “was so plainly

included in the promise of a ‘trial by an impartial jury.’” Ramos, 590 U.S. at 97. And

the deep problem with Apodaca’s cost-benefit analysis was that it “subjected the

ancient guarantee of a unanimous jury verdict to its own functionalist assessment.”

Id. at 100. Apodaca was “gravely mistaken,” id. at 106, and “egregiously wrong,” id.

at 124 (Kavanaugh, J., concurring).

Williams was part of that “strange turn” away from the long-established

precedent holding that the jury right included its common-law features. It employed

precisely the same flawed reasoning as Apodaca. 399 U.S. at 92-102. Indeed,

Apodaca adopted Williams’ reasoning and cited it copiously. Apodaca, 404 U.S. at

406-11. Williams rejected the same longstanding precedent holding that the Sixth

Amendment jury right encompassed the common law right to a unanimous jury of

12. 399 U.S. at 90-91. It considered the same deletion of surplusage by the

Amendment’s drafters to find “no indication in the ‘intent of the Framers’ of an

explicit decision to equate the constitutional and common-law characteristics of the

jury.” Id. at 98. It then turned to the same “functionalist” approach condemned in

Ramos: “The relevant inquiry, as we see it, must be the function that the particular

feature performs and its relation to the purposes of the jury trial.” Id. at 99.

Concluding that 12 jurors was not necessary to “prevent oppression by the

Government” and relying on some social science experiments for the proposition

that the 12-member jury is not “necessarily more advantageous to the defendant,”

Williams concluded that the 12-person jury was “a historical accident” and could be

discarded. Id. at 100-02.

By Ramos’s logic, Williams cannot stand. Justice Gorsuch has recognized

this, twice dissenting from denial of certiorari to review the practices of two states

allowing juries of less than 12. “Williams was wrong the day it was decided, [and] it

remains wrong today.” Khorrami, 143 S. Ct. at 23 (Gorsuch, J., dissenting from

denial of certiorari); see also Cunningham, 144 S. Ct. 1287 (Gorsuch, J., dissenting

from denial of certiorari) (in Williams, “a revolutionary decision,” “this Court turned

its back on the original meaning of the Constitution, centuries of historical practice,

and a battery of this Court’s precedents”). Yet while lingering on life support,

Williams was relied on below to downgrade the right to 12 jurors in a federal felony

trial to “not even a substantial right,” one that can be disposed of in violation of the

federal rule on the theory that the defendant would have been convicted anyway.

Williams is an egregiously wrong decision; it is a jurisprudential embarrassment

after Ramos; and its impact has spilled over into federal trials, where the right to a

jury of 12 is considered so insubstantial in the Second Circuit that a judge can

remove three jurors in a two-day trial without regard to Rule 23(b) and be affirmed

on an unprecedented application of harmless-error review. Five years after Ramos,

this Court should reconcile its Sixth Amendment jurisprudence and return the jury

right to its full meaning before the wrong turn of Williams and Apodaca.

1. Williams Disregarded the Common Law Meaning of the Sixth

Amendment at the Time of Adoption.

“Williams was an anomaly the day it issued in 1970.” See Khorrami, 143 S.

Ct. at 24. “[A] mountain of evidence suggests that, both at the time of the

Amendment’s adoption and for most of our Nation’s history, the right to a trial by

jury for serious criminal offense meant a trial before 12 members of the

community—nothing less.” Id. at 23 (emphasis omitted).

Williams recognized the long common law history of the 12-member jury and

that “sometime in the 14th century the size of the jury at common law came to be

fixed generally at 12.” 399 U.S. at 87-89. Williams just didn’t think this was

important. Finding no consistent reason for that number, Williams concluded the

number 12 must have been a “historical accident.” Id. Williams likewise

acknowledged this Court’s longstanding precedent reaffirming the Sixth

Amendment right to a jury of 12, e.g. Thompson v. Utah, 170 U.S. 343 (1898) and

Patton v. United States, 281 U.S. 276 (1930), but dismissed the reasoning of these

cases as relying “solely on the fact that the common-law jury consisted of 12.” Id. at

90-92.

After Ramos, we now know that Williams was wrong and the common-law

meaning of the jury trial right at the time of the Sixth Amendment is precisely what

matters, not whether its features appeal to a modern cost-benefit analyst. And on

common-law meaning, there can be no doubt that “at the time of the Amendment’s

adoption, the right to a jury trial meant” the right to a jury of 12. Ramos, 590 U.S.

at.

2. The Jury Right at Adoption and Until Williams Meant a Jury of 12

Persons.

At the time of the Sixth Amendment’s ratification, the size of a felony jury

had been fixed in Anglo-American law for over 400 years. See Khorrami, 143 S. Ct.

at 23 (Gorsuch, J., dissenting from denial of certiorari) (citing Robert H. Miller,

Comment, Six of One Is Not a Dozen of the Other: A Reexamination

of Williams v. Florida and the Size of State Criminal Juries, 146 U. Pa. L. Rev. 621,

643 (1998)). Any number of contemporaneous sources described this invariable

requirement. See, e.g., 2 Matthew Hale, Historia Placitorum Coronae: The History of

the Pleas of the Crown 293 (London, 1736) (“the jury are commanded to look on the

prisoners, and then severally twelve of them, neither more nor less, are sworn.”)

(emphasis added); 4 William Blackstone, Commentaries on the Laws of England 343

(Oxford, 1769) (“the truth of every accusation [was] confirmed by the unanimous

suffrage of twelve of his equals and neighbours.”) (emphasis added); Of Juries, in 2

Collected Works of James Wilson 985 (K. Hall & M. Hall eds. 2007) (the unanimous

sentiment of the twelve jurors is of indispensable necessity” to “the conviction of a

crime.”) (emphasis added).

There is every reason to believe that the Jury Clause incorporated this

common law mandate, as it did the unanimity requirement. A wide variety of early

cases so held. See, e.g., Khorrami, 143 S. Ct. at 23 (Gorsuch, J., dissenting from

denial of certiorari) (“a ‘flurry’ of state courts interpreted the phrase ‘trial by an

impartial jury’ to require the use of a 12-person panel”); Brief for American Civil

Liberties Union as Amicus Curiae at 9-14, Khorrami v. Arizona, 143 S. Ct. 22 (2022)

(available at 2022 WL 2704756) (collecting cases). Early American law treatises,

including Joseph Story’s influential Commentaries, repeated this widespread

understanding. See 2 Joseph Story, Commentaries on the Constitution of the United

States 588 (3d ed. 1858) (“a trial by jury is generally understood to mean … a trial

by a jury of twelve men, impartially selected, who must unanimously concur in the

guilt of the accused before a legal conviction can be had. Any law therefore,

dispensing with any of these requisites, may be considered unconstitutional.”); Joel

Prentiss Bishop, Commentaries on the Law of Criminal Procedure 532 (Boston,

1866) (“a jury of less than twelve men is not a jury; and a statute authorizing a jury

of less, in a case in which the constitution guarantees a jury trial, is void.”). And

legal dictionaries and judicial guidebooks were no different. See Conductor

Generalis: or, the Office, Duty and Authority of Justices of the Peace 393

(Woodbridge, N.J., 1764); Burn’s Abridgement, or the American Justice 380 (Dover,

N.H., 2d ed. 1792); 2 Richard Burn, A New Law Dictionary 45 (London, 1792).

Given this history, it is little surprise that pre-Williams decisions repeatedly

affirmed the twelve-member requirement for a constitutional jury. See Khorrami,

143 S. Ct. at 24 (Gorsuch, J., dissenting from denial of certiorari) (citing, among

others, Thompson, 170 U.S. 343; Rassmussen v. United States, 197 U.S. 516 (1905),

and Patton, 281 U.S. 276). In Thompson, 170 U.S. at 350, the Court explained that

“the word ‘jury’ and the words ‘trial by jury’ were placed in the constitution … with

reference to the meaning affixed to them in the law as it was in this country and in

England at the time of the adoption of that instrument” which included “a jury

composed of not less than twelve persons.” Three decades later, in Patton, 281 U.S.

at 288, the Court reaffirmed that holding, reiterating that the Sixth Amendment

protected “trial by jury as understood and applied at common law” and that an

“essential element[]” of that right was that “the jury should consist of twelve men,

neither more nor less.”

In short, it was well understood among the Founding-era public that the

Sixth Amendment guaranteed twelve-member felony juries. That historical

understanding prevailed for most of the nation’s history. And after Ramos, it again

controls the meaning of the Jury Clause. See Ramos, 590 U.S. at 98, 100. Thus, in

addition to being egregiously wrong, Williams is inconsistent – indeed irreconcilable

– with just about every related decision before and after it, and should be overruled.

B. Williams Has Significant Negative Consequences and No

Reliance Interests Justify Retaining It.

Williams has caused both “significant negative jurisprudential [and] realworld consequences.” Ramos, 590 U.S. at 122. Start with the real world. Just as

Apodaca did, Williams allows “the conviction at trial … of some defendants who

might not be convicted under the proper constitutional rule.” Ramos, 590 U.S. at

126 (Kavanaugh, J., concurring). In the states that routinely try felony cases before

a jury of less than twelve, this has real-world consequences for thousands of

criminal defendants.

And in the federal system, judges routinely invoke Rule 23(b)’s post-Williams

exception allowing an 11-member jury for “good cause” without consent after

deliberations have begun, despite the intent of the Advisory Committee that this

should only occur rarely, “where the trial has been a lengthy one.” The Second

Circuit, in particular, has ignored this intent and repeatedly affirmed dismissal of

the 12th juror after very short trials to avoid relatively minor delays. It has

interpreted Rule 23(b)’s narrow exception for cause to “afford[] trial courts ‘wide

latitude’ to make an ‘informed decision on all kinds of problems—temporary as well

as those of long duration—that may befall a juror during jury deliberations.’”

United States v. Paulino, 445 F.3d 211, 226 (2d Cir. 2006) (affirming dismissal of

12th juror over objection during deliberations after only two days of testimony,

where a stomach illness might have kept her home for a day and a half of

deliberations); Brief on Behalf of the United States, 2004 WL 5210318 at 52. Accord,

United States v. Simmons, 560 F.3d 98, 102, 109-10 (2d Cir. 2009) (citing “wide

latitude” of the Rule in affirming dismissal of 12th juror after less than two days of

testimony because her child’s illness would prevent her sitting for one day, where

she might have been able to come the next day); United States v. Gibson, 135 F.3d

257, 260 (2d Cir. 1998) (explicitly rejecting the Advisory Committee’s statement and

holding that “proceeding with eleven jurors is generally preferable to a mistrial”

even in a brief trial). See also United States v. Glover, 21 F.3d 133, 135 (6th Cir.

1994) (rejecting Advisory Committee statement in favor of “the sound discretion of

the trial court” in affirming proceeding with 11 jurors after only a three-day trial).

What was intended as a narrow exception has instead become a green light to

drop the 12th juror at the slightest inconvenience. In this case, the district court

had so little concern for Petitioner’s right to a jury of 12 that it excused three jurors

and went down to 11 in less than two days of trial. It dismissed an alternate

because of a “three-hour delay” occasioned by her brief medical emergency, while it

“simultaneously consider[ed] whether to [and ultimately did] dismiss [the 12th

juror].” Pet.App.23-24a,108-109a.

There are significant jurisprudential costs of keeping Williams on the books

as well. Already discussed is its utter inconsistency with Ramos. Indeed, the two

cases are irreconcilable and keeping Williams alive after Ramos simply makes no

sense. Despite its obvious flaws, Williams justifies an expanding laxity –

exemplified by the majority opinion below – toward the federal right to a jury of 12

under Rule 23(b), now deemed in the Second Circuit to be not even substantial, or

essentially trivial. While this Court has thus far declined to reconsider Williams

with respect to state jury trials, see Cunningham, 144 S. Ct. at 1288 (Gorsuch, J.

dissenting from denial of certiorari), the Second Circuit’s reliance on Williams to

preclude a remedy for violation of the federal right to a 12-person jury provides

additional grounds for finally overruling it.

Williams’s social science theory – that jury size does not matter much – was

contradicted by subsequent studies. This Court relied on that very research in

Ballew v. Georgia, 435 U.S. 223 (1978) to hold that a jury of five violated the Sixth

Amendment, while reaffirming Williams’s holding that a state jury could consist of

six. Ballew did “not pretend to discern a clear line between six members and five,”

id. at 239, but its entire reasoning was based on more recent social science showing

that smaller juries are more likely to convict and less likely to produce accurate

results. Id. at 234-235. It concluded that “progressively smaller juries are less likely

to foster effective group deliberation” and that “a positive correlation exists between

group size and the quality of both group performance and group productivity.” Id. at

232-33. It further recognized that “as juries decrease in size … they are less likely to

have members who remember each of the important pieces of evidence or argument”

and that “the smaller the group, the less likely it is to overcome the biases of its

members to obtain an accurate result.” Id. at 233. While declining to overrule

Williams, id. at 239, Ballew’s studies undermined Williams’s theory, based a few

social science experiments, that jury size did not affect outcomes. And since Ballew,

studies have proliferated showing that “12-member juries deliberate longer, recall

information better, and pay greater attention to dissenting voices.” Khorrami, 143

S. Ct. at 27 (Gorsuch, J., dissenting from denial of certiorari).

Finally, there are no reliance interests that justify retaining Williams.

Ramos does not apply retroactively on federal collateral review, Edwards v. Vannoy,

593 U.S. 255, 259 (2021), so neither would a decision overruling Williams. The

interests of the states with nonunanimous juries in preserving their convictions on

direct appeal is not sufficient. Ramos, 590 U.S. at 110-11. “That consequence almost

always ensues when a criminal procedure precedent that favors the government is

overruled.” Id. at 129 (Kavanaugh J., concurring). There is “no case in which the

one-time need to retry defendants has ever been sufficient to inter a constitutional

right forever.” Id. at 111.

In sum, all the foundations of Williams have cracked and there is nothing

supporting it. It is a relic of a “strange turn” in the Court’s Sixth Amendment

jurisprudence that is obviously wrong but continues to “deny the American people a

liberty their predecessors long and justly considered inviolable.” Khorrami, 143 S.

Ct. at 27 (Gorsuch, J., dissenting from denial of certiorari).

III.

These Issues are Critically Important, and This Case Is an Ideal

Vehicle for Resolving Them.

This case presents a clear and uncomplicated opportunity to decide both

questions raised. The question whether a violation of Rule 23(b) is structural or can

be harmless was cleanly presented and squarely decided below. Indeed, it was the

only question with respect to the Rule 23(b) violation because the government

conceded error. See Brief for United States, 2022 WL 18108348, at *30; see also

Pet.App.12a. The question whether Williams should be overruled could not be

decided by the Second Circuit, but petitioner argued that it was wrongly decided

and would likely be overruled by this Court. See Reply Brief for DefendantAppellant, 2023 WL 387149, at *4.

Each issue is outcome-determinative. Had the Second Circuit concluded, like

5 other circuits, that Rule 23(b) error is structural, the remedy would have been per

se reversal. And the panel majority reached its contrary conclusion by holding that

only constitutional error can be structural and that Williams’ holding that the Sixth

Amendment does not require a jury of 12 precluded it from holding the error to be

structural. 1 So if this Court either holds that the Rule 23(b) violation is structural

error or overrules Williams, the Second Circuit would reverse Petitioner’s

conviction.

This case also is the rare one that gives this Court multiple potential paths

for providing clarity on the jury trial right. It could resolve the 5-1 split at the heart

of this petition by addressing whether a Rule 23(b) violation is structural error,

without opining on whether other nonconstitutional rights are amenable to

Judge Lohier’s attempt, in concurring from denial of en banc review, to characterize this holding as

dicta is irrelevant. Pet.App.70a. Readers should “go to the source, rather than rely on” nonprecedential concurrences, “to understand what the Court holds.” Bondi v. VanDerStok, 145 S.Ct.

857, 877 (2025) (Sotomayor, J., concurring). The precedential majority opinion below squarely holds:

“Because the right to twelve rather than eleven jurors that Rule 23(b) provides does not implicate

the Constitution – at its bedrock or otherwise – we review a violation of that rule for harmless error.”

Pet.App.15a. And the opinion’s author, Judge Menashi, confirms in his concurrence from denial of

rehearing that “Johnson held that non-constitutional errors are necessarily subject to harmless-error

review.” Pet.App.82a.

harmless-error analysis. Alternatively, it could resolve the broader circuit conflict

by deciding whether structural errors must be of a constitutional dimension. Or it

could resolve this case by finally overruling Williams. No matter which path it

chooses, the Court would have an opportunity to shed much-needed light on the

scope of the jury trial right and harmless-error review.

Finally, whether the deprivation of petitioner’s conviction by a jury of 11

persons violates the Sixth Amendment’s guarantee or only Rule 23(b)’s guarantee of

the right to a jury of 12, the violation is fundamental and consequential. The right

to a trial by 12 of one’s peers dates back to the 14th century, and was no mere

historical accident: We know, from decades of research since Williams, that

reduction in jury size can have a negative impact on outcomes. See Khorrami, 143 S.

Ct. at 26-27 (Gorsuch J., dissenting from denial of certiorari) (collecting studies).

And, as anyone who has watched the film 12 Angry Men knows, “[t]he addition or

removal of even a single juror might increase the chances of conviction – or of

acquittal – and quite obviously increases the chances of a lone holdout resulting in a

mistrial.” Pet.App.94a (Merriam, J., dissenting from denial of reh’g en banc).

At bottom, because the Second Circuit holds that proceeding with less than

12 jurors can be overlooked as harmless if the reviewing court thinks the evidence

was strong enough, this fundamental violation of an ancient right cannot be

rectified in the Second Circuit. So, while federal defendants in other circuits have

the right to a 12-person jury and automatic reversal for violation of that right,

defendants in the Second Circuit now do not. Only this Court can stop the Second

Circuit’s erosion of the jury trial right.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

By:

/s/ Colleen P. Cassidy