Opposition Brief — Rickey Johnson, aka Sealed Defendant 1, aka Neil Dawn Defarren, Petitioner v. United States
Supreme Court briefJan 14, 2026
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No. 25-5895
________________________________________________________________
________________________________________________________________
IN THE SUPREME COURT OF THE UNITED STATES
_______________
RICKEY JOHNSON, PETITIONER
v.
UNITED STATES OF AMERICA
_______________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
_______________
BRIEF FOR THE UNITED STATES IN OPPOSITION
_______________
D. JOHN SAUER
Solicitor General
Counsel of Record
A. TYSEN DUVA
Assistant Attorney General
ANN O’CONNELL ADAMS
Attorney
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
________________________________________________________________
________________________________________________________________
QUESTIONS PRESENTED
1.
Whether,
notwithstanding
that
an
11-member
jury
is
constitutionally permissible under Willams v. Florida, 399 U.S. 78
(1970),
petitioner
conviction
based
on
was
entitled
to
automatic
a
violation
of
Federal
vacatur
Rule
of
of
his
Criminal
Procedure 23(b), which required petitioner’s consent to proceed
with an 11-member jury after the 12th juror was dismissed for good
cause shortly before deliberations.
2.
Whether this Court should overrule Willams, supra, and
hold that the Sixth Amendment precludes a trial court from allowing
an 11-member jury to return a verdict, where the court dismissed
the 12th juror for good cause after the close of evidence.
(I)
RELATED PROCEEDINGS
United States District Court (S.D.N.Y):
United States v. Johnson, 21-cr-194 (June 9, 2022)
United States Court of Appeals (2d Cir.):
United States v. Johnson, No. 22-1289 (Sept. 6, 2024)
(II)
IN THE SUPREME COURT OF THE UNITED STATES
_______________
No. 25-5895
RICKEY JOHNSON, PETITIONER
v.
UNITED STATES OF AMERICA
_______________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
_______________
BRIEF FOR THE UNITED STATES IN OPPOSITION
_______________
OPINION BELOW
The opinion of the court of appeals (Pet. App. 1a-64a) is
reported at 117 F.4th 28.
JURISDICTION
The judgment of the court of appeals (Pet. App. 1a-64a) was
entered on September 6, 2024.
A petition for rehearing was denied
on July 14, 2025 (Pet. App. 65a-102a).
The petition for a writ of
certiorari was filed on October 10, 2025.
The jurisdiction of
this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
Following a jury trial in the United States District Court
for the Southern District of New York, petitioner was convicted on
2
two counts of transmitting threats in interstate commerce, in
violation of 18 U.S.C. 875(c); and one count of threatening a
United States official, in violation of 18 U.S.C. 115.
1-2.
Judgment
The district court sentenced petitioner to 24 months of
imprisonment, to be followed by three years of supervised release.
Judgment 3-4.
1.
In
The court of appeals affirmed.
Pet. App. 1a-64a.
January
the
2021,
petitioner
used
social-media
platform Instagram to contact Fox News host Greg Gutfeld, sending
Gutfeld a series of private messages that stated, inter alia, “you
will be killed.”
Pet. App. 4a (citation omitted).
Gutfeld e-
mailed the messages to Fox’s director of corporate security -with the subject line “Death threat” -- and noted that the sender’s
profile disclosed that he was in Manhattan.
omitted).
Ibid. (citation
The security director then alerted the New York City
Police Department (NYPD).
Ibid.
In February 2021, petitioner posted three videos on Instagram
featuring clips from Fox News with petitioner speaking over the
audio. Pet. App. 4a-5a. In the first video, petitioner threatened
to kill Gutfeld and then-Senator Joe Manchin.
Id. at 5a.
In a
second video, petitioner spoke over a Fox News clip of Laura
Ingraham and said, inter alia, “you will be killed.”
(citation omitted).
Ibid.
In the third video, petitioner spoke over a
video of Representative Lauren Boebert and threatened to kill her.
Id. at 5a-6a.
3
Following outreach from the NYPD, the United States Capitol
Police
notified
the
offices
of
then-Senator
Manchin
Representative Boebert about petitioner’s videos.
and
Pet. App. 6a.
Security patrols were stationed outside of then-Senator Manchin’s
West Virginia home at his request, and a Capitol Police special
agent obtained Representative Boebert’s schedule to provide extra
security for her in Washington, although she did not request any
additional security.
2.
A
grand
Ibid.
jury
in
The NYPD arrested petitioner.
Ibid.
the
York
Southern
District
of
New
indicted petitioner on two counts of transmitting threats in
interstate commerce, in violation of 18 U.S.C. 875(c) and 2; and
two counts of threatening a United States official, in violation
of 18 U.S.C. 115 and 2.
Superseding Indictment 1-3.
Twelve
jurors
and
petitioner’s
trial,
which
testimony
from
the
two
began
Capitol
investigated the threats.
alternates
with
Police
were
selected
for
opening
statements
and
special
agent
had
Pet. App. 7a.
who
The next morning, an
alternate juror (Alternate No. 2) informed the district court that
she had spent all night in the hospital and would not be able to
arrive at court until the early afternoon.
Ibid.
Although the
defense asked to wait for Alternate No. 2 to arrive, the court
dismissed her and proceeded with trial.
Ibid.
That same morning, the district court also considered two
incidents involving Juror No. 2.
Pet. App. 7a-8a.
First, an NYPD
4
detective involved in the investigation reported that, during a
recess the previous day, he had overheard Juror No. 2 saying that
“the white man stole Manhattan from the Native Americans”; “Abraham
Lincoln did not want to free the slaves” but did so “because the
northern states had [an] interest in cheap labor”; “General Sherman
and another general from the Union Army slaughtered the plains
Indians” when building the intercontinental railroad; and “the
white man killed the Native Americans who had tobacco farms in the
United States” due to the financial interests of Englishmen in
tobacco.
Id. at 7a (citation and quotation marks omitted).
The
detective said that Juror No. 2’s statements were “unprompted” and
were initially directed at a group that included other jurors, but
were later directed toward the detective himself as others walked
away.
Id. at 8a.
Second, the court itself alerted the parties
that on that same morning, Juror No. 2 had approached the woman
who brought coffee to the jurors and started talking to her.
Ibid.
When the district court questioned Juror No. 2 about his
statements to the detective, the juror denied speaking to the
detective, became indignant, and demanded the identification of
his “accuser.”
Pet. App. 8a (citation omitted).
The juror
acknowledged speaking to the woman who delivered coffee but denied
discussing the case with her.
Ibid.
The government requested
that Juror No. 2 be dismissed for good cause on the ground that he
was disruptive and would be biased against the government based on
5
the incident involving the detective.
Ibid.
The court permitted
Juror No. 2 to remain on the jury pending further consideration.
Ibid.
Later that day, the court observed Juror No. 2 sleeping
during testimony, which the juror denied when confronted by the
court.
Ibid.
The next morning, the district court informed the parties
that Juror No. 7, who had told the court that he was unlikely to
attend proceedings for a few days due to childcare issues, would
be dismissed. Pet. App. 9a. Neither party objected, and Alternate
No. 1 replaced Juror No. 7.
Ibid.
jurors and no remaining alternates.
At that point, there were 12
Ibid.
The district court then revisited the situation with Juror
No. 2.
Although the court determined that the sleeping episode
required no further action and that Juror No. 2 had not been
deliberately untruthful when questioned about the incident with
the
detective,
the
court
recognized
that
the
juror
had
been
agitated and upset by what he viewed as an unfair and inaccurate
accusation.
Pet. App. 9a-10a.
And the court found that Juror No.
2 likely attributed the accusation to the prosecution team; that
the facts supported a finding of “presumption of bias”; and that,
as a factual matter, the juror was “actively biased against the
government.” Id. at 10a (citation omitted). The court accordingly
dismissed Juror No. 2 for good cause on bias grounds.
Ibid.
6
Federal Rule of Criminal Procedure Rule 23(b) provides that
a jury generally consists of 12 members “unless this rule provides
otherwise.”
Fed. R. Crim. P. 23(b)(1).
The Rule further provides
that the parties may “[a]t any time before the verdict” stipulate
with the court’s approval (A) to a jury consisting of fewer than
12 people; or (B) to a jury of fewer than 12 people returning a
verdict “if the court finds it necessary to excuse a juror for
good cause after the trial begins.”
Fed. R. Crim. P. 23(b)(2).
The Rule also provides that, “[a]fter the jury has retired to
deliberate, the court may permit a jury of 11 persons to return a
verdict, even without a stipulation by the parties, if the court
finds good cause to excuse a juror.”
Fed. R. Crim. P. 23(b)(3).
Here, the district court proceeded with 11 jurors without
obtaining a stipulation from the parties.
Pet. App. 10a.
After
the court denied petitioner’s motion for a mistrial, the parties
delivered closing arguments and the 11 jurors began deliberations.
Ibid.
The
jury
found
petitioner
guilty
on
both
counts
of
transmitting threats in interstate commerce and on the count of
threatening
a
United
States
official
related
to
then-Senator
Manchin, but not guilty on the count related to Representative
Boebert.
Id. at 11a; see Superseding Indictment 1-3.
The court
sentenced petitioner to 24 months of imprisonment, to be followed
by three years of supervised release.
Judgment 3-4.
7
3.
The court of appeals affirmed.
Pet. App. 1a-64a.
The
court of appeals determined, and the parties agreed, that the
district court had violated Rule 23(b) by proceeding with an 11member
jury
without
deliberations began.
a
stipulation
from
Id. at 12a, 19a.
the
parties,
before
But the court of appeals
declined to grant petitioner automatic appellate relief on that
basis.
See id. at 12a-21a.
The court of appeals observed that under this Court’s decision
in
Williams
v.
Florida,
399
U.S.
78
(1970),
constitutional right to a 12-member jury.
there
Pet. App. 13a.
is
no
It also
observed that circuit precedent had accordingly reasoned that “the
absolute right to a jury of twelve that [defendants] possessed
prior to the 1983 amendment of Rule 23(b)” is no longer classified
as a “‘substantial right.’”
then
explained
that
a
Ibid. (citation omitted).
violation
of
Rule
23(b)’s
The court
12-juror
requirement does not amount to a “structural error” that would
warrant automatic reversal, but is instead subject to standard
harmless-error analysis under Federal Rule of Criminal Procedure
52(a).
The
Id. at 13a-14a.
court
of
appeals
observed
that
this
Court
has
only
recognized a “‘highly exceptional’ category” of structural errors
-- all of which involve the deprivation of constitutional rights
that define the framework of a criminal trial, such as the right
to counsel of choice, the right to self-representation, the right
8
to a public trial, and the right for a jury to be instructed on
guilt beyond a reasonable doubt.
omitted).
The
court
reasoned
Pet App. 14a-15a (citation
that,
if
even
non-“bedrock”
constitutional errors are subject to harmless-error review, it
follows that nonconstitutional errors are as well.
(citation omitted).
Id. at 15a
The court rejected petitioner’s argument that
a violation of Rule 23(b) should be a structural error on the
theory that it necessarily affects the framework of the trial,
noting that Williams does not require a 12-member jury for a
reliable determination of guilt.
Id. at 16a-17a.
The court of appeals acknowledged that its approach differed
from the Fourth Circuit’s structural-error approach to a Rule 23(b)
error in United States v. Curbelo, 343 F.3d 273 (2003), but stated
that it disagreed with that court’s decision.
Pet. App. 15a-16a.
It observed, however, that other decisions declining to analyze
prejudice in that context predated this Court’s emphasis on the
limits of structural-error doctrine in Neder v. United States, 527
U.S. 1 (1999).
Pet. App. 15a n.3.
The court also acknowledged
petitioner’s argument that Williams was wrongly decided, but noted
that it was bound to follow this Court’s precedent.
Id. at 18a.
Applying harmless-error analysis to the circumstances of this
case, the court of appeals found that the Rule 23(b) violation
here was harmless.
Pet. App. 19a-21a.
The court observed that
petitioner did not deny that he had posted the videos at issue and
9
sent the messages at issue, and that his “only defense was that he
‘was not seriously threatening to kill anyone’ and that ‘[n]o
reasonable
person
would
view
[his]
statements
as
reasonable
threats, because they . . . were vague and general.’”
Id. at 19a
(citation omitted; first set of brackets in original).
The court
found that “the evidence overwhelmingly showed otherwise” because
the videos contained explicit death threats.
20a-21a (discussing evidence).
Ibid.; see id. at
And the court did not view the
split verdict as an indication of a “close case,” noting a basis
for
treating
the
video
threatening
Representative
differently from the counts on which the jury found guilt.
Boebert
Id. at
19a, 21a & n.8.
Judge Chin dissented.
violations
of
Rule
automatic reversal.
23(b)
Pet. App. 39a-64a.
are
Id. at 45a-59a.
deemed the error here prejudicial.
4.
banc.
structural
In his view,
error,
warranting
Alternatively, he would have
Id. at 59a-64a.
The court of appeals denied a petition for rehearing en
Pet. App. 66a-67a.
Judge Lohier, joined by Judge Bianco
and in part by Judges Kahn, Lee, Robinson, Pérez, and Nathan,
concurred in the denial of rehearing.
Id. at 68a-73a.
In the
portion of his opinion joined by all of those judges, Judge Lohier
stated that “the question of whether a structural error must
implicate a defendant’s constitutional rights remains an open one
in th[e Second] Circuit because the panel opinion’s statements
10
bearing
on
a
hypothetical
structural
constitutional are clearly dicta.”
error
Id. at 68a.
that
is
non-
The remainder of
Judge Lohier’s concurrence in the denial of rehearing en banc
explained that precedents of this Court and the Second Circuit
established that a violation of Rule 23(b) does not affect a
defendant’s constitutional or substantial rights.
Id. at 68a-69a.
Judge Menashi (the author of the original panel opinion),
joined
by
Judges
Livingston,
Sullivan,
and
Park,
authored
a
separate concurrence in the denial of rehearing, explaining that
the panel opinion was correct and reading the panel opinion to
hold that structural errors must be constitutional errors.
App. 74a-84a.
Judge Merriam, joined by Judges Lee, Robinson,
Pérez, and Nathan, dissented from the denial of rehearing.
85a-96a.
Pet.
Id. at
In Judge Merriam’s view, structural errors need not be
constitutional in nature, and the Rule 23(b) violation in this
case was a structural error warranting automatic reversal.
Ibid.
Judge Chin filed a statement with respect to the denial of
rehearing en banc reiterating the views expressed in his panel
dissent and indicating that had he not been in senior status, he
would have voted for rehearing en banc.
Pet. App. 97a-102a.
ARGUMENT
Petitioner contends (Pet. 13-22) that a violation of Federal
Rule
of
Criminal
Procedure
23(b)
is
a
structural
error
that
warrants automatic reversal regardless of prejudice, or the lack
11
thereof.
The court of appeals correctly rejected that argument,
and any shallow circuit disagreement on that issue does not warrant
review by this Court.
that this
Court
Petitioner further contends (Pet. 22-36)
should
overrule
its
decision
in
Williams
v.
Florida, 399 U.S. 78 (1970), and hold that the Sixth Amendment
right to a trial by jury necessarily requires a 12-person jury.
Williams is correct, and petitioner fails to provide a sound reason
to reexamine it now.
This Court has repeatedly denied petitions
for writs of certiorari pressing similar arguments.
See Parada v.
United
(No.
States,
2026
WL
79784
(Jan.
12,
2026)
25-166);
Cunningham v. Florida, 144 S. Ct. 1287 (2024) (No. 23-5171);
Khorrami v. Arizona, 143 S. Ct. 22 (2022) (No. 21-1553); Phillips
v. Florida, 142 S. Ct. 721 (2021) (No. 21-6059); Logan v. Florida,
552 U.S. 1189 (2008) (No. 07-7264) (cited by McDonald v. City of
Chicago, 561 U.S. 742, 868 n.12 (2010) (Stevens, J., dissenting)).
The same result is warranted here.
1.
a.
Federal Rule of Criminal Procedure 23(b) sets the
default number of jurors at 12, Fed. R. Crim. P. 23(b)(1); allows
an 11-person jury without stipulation if a juror is excused for
good cause after deliberations commence, Fed. R. Crim. P. 23(b)(3);
and provides that the parties may “[a]t any time before the
verdict” stipulate with the court’s approval to a smaller jury
either from the beginning or when “the court finds it necessary to
excuse a juror for good cause after the trial begins,” Fed. R.
12
Crim. P. 23(b)(2).
The Rule is consistent with this Court’s
holding in Williams, supra, that “the constitutional guarantee of
a trial by ‘jury’” does not “necessarily require[] trial by exactly
12 persons, rather than some lesser number.”
399 U.S. at 86.
As all parties agreed on appeal, the district court violated
Rule 23(b) in petitioner’s case.
with
only
11
jurors
To permit the case to proceed
(shortly)
before
the
beginning
of
deliberations, the court should have obtained the stipulation of
the
parties.
But
that
error
does
not
automatically
entitle
petitioner to a new trial. Instead, under Federal Rule of Criminal
Procedure 52(a), “[a]ny error, defect, irregularity, or variance
that does not affect substantial rights must be disregarded.” Fed.
R. Crim. P. 52(a); see 28 U.S.C. 2111 (directing that appellate
courts give no “regard to errors or defects which do not affect
the substantial rights of the parties”).
That requirement of prejudice ensures that the “significant
‘social costs’” that result from reversing criminal verdicts -“including the expenditure of additional time and resources for
all the parties involved, the ‘erosion of memory’ and ‘dispersion
of witnesses’ that accompany the passage of time[,]
the
frustration
of
‘society’s
--
will
not
be
in
and
the
prompt
imposed
without
administration
of
justification.
Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)
(citation omitted).
justice’”
interest
* * *
As this Court has made clear, the “general
13
rule” is that even “a constitutional error does not automatically
require reversal of a conviction.”
Arizona v. Fulminante, 499
U.S. 279, 306 (1991).
This Court has recognized a “very limited” set of errors that
are so intrinsically harmful to the framework of a prosecution
that they require automatic vacatur of the defendant’s conviction
without regard to any case-specific showing of prejudice.
Neder
v. United States, 527 U.S. 1, 8 (1999) (citation omitted); see
United States v. Gonzalez-Lopez, 548 U.S. 140, 148-149 (2006).
That
“highly
example,
the
exceptional”
“denial
of
category
counsel
of
of
errors
choice,
includes,
denial
of
for
self-
representation, denial of a public trial, and failure to convey to
a jury that guilt must be proven beyond a reasonable doubt.”
Greer
v. United States, 593 U.S. 503, 513 (2021).
Only errors that “affect the ‘entire conduct of the proceeding
from beginning to end’” and “‘necessarily render’” the trial
“‘fundamentally unfair or an unreliable vehicle for determining
guilt or innocence’” are classified as structural.
Greer, 593
U.S. at 513 (brackets and citations omitted). “‘[I]f the defendant
had counsel and was tried by an impartial adjudicator, there is a
strong presumption that any other errors that may have occurred’
are not ‘structural errors.’”
United States v. Marcus, 560 U.S.
258, 265 (2010) (citation omitted).
14
The error here -- proceeding with 11 jurors after the close
of evidence but shortly before deliberations, without petitioner’s
consent -- is not comparable to the structural errors identified
by this Court.
Far from suggesting that an 11-member jury is
“fundamentally unfair,” Rule 23(b) permits such juries in certain
circumstances.
Indeed, if the district court had waited just a
few hours (i.e., until deliberations began) to dismiss Juror No.
2 for cause, the Rule would have allowed it to do so without
petitioner’s consent.
See Fed. R. Crim. P. 23(b)(3).
Because Rule 23(b) contemplates that verdicts will at times
be rendered by fewer than 12 jurors, deliberation by an 11-person
jury due to a Rule 23(b) error cannot be considered the type of
error
that
has
“deprive[d]
[petitioner]
of
basic
protections
without which a criminal trial cannot reliably serve its function
as a vehicle for determination of guilt or innocence” and rendered
the criminal punishment “fundamentally unfair.”
Neder, 527 U.S.
at 8-9 (citation and quotation marks omitted); see Greer, 593 U.S.
at 513. That is consistent with the precedent of this Court, which
has itself rejected the notion that a jury with fewer than 12
members is unreliable or unfair to defendants, see Williams, 399
U.S. at 100-102, and has declined to find structural error in the
violation of a Federal Rule of Criminal Procedure “not
* * *
impelled by the Due Process Clause or any other constitutional
requirement,” United States v. Davila, 569 U.S. 597, 610 (2013).
15
b.
As the court of appeals noted (Pet. App. 15a-16a), a
split panel of the Fourth Circuit in United States v. Curbelo, 343
F.3d 273 (2003), deemed a Rule 23(b) error to be structural.
But
petitioner does not explain why any shallow disagreement as to the
remedy for a preserved (as opposed to forfeited) claim of a form
of infrequently arising error warrants this Court’s review.
See
United States v. Cotton, 535 U.S. 625, 633-634 (2002) (recognizing
that unpreserved claims of structural error do not automatically
warrant relief). Moreover, Curbelo was decided before this Court’s
most recent structural-error decisions, such as Marcus, Davila,
and Greer.
The majority opinion in Curbelo therefore did not
address how a Rule 23(b) error would fit within the “exceptional”
category of error that necessarily render the trial fundamentally
unfair or unreliable, Greer, 593 U.S. at 513 (citation omitted);
see Curbelo, 343 F.3d at 292 (Wilkins, C.J., dissenting).
Although petitioner claims (Pet. 9-10) that the court of
appeals’ decision holding that a Rule 23(b) error is not structural
“created a clear conflict with five other circuits,” he focuses
principally on Curbelo.
None of the other decisions cited by
petitioner (Pet. 9-12) 1 undertakes a structural-error analysis,
and with one exception each case predated the limitations on
See United States v. Araujo, 62 F.3d 930, 937 (7th Cir.
1995); United States v. Patterson, 26 F.3d 1127, 1129 (D.C. Cir.
1994); United States v. Essex, 734 F.2d 832, 845 (D.C. Cir. 1984);
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).
1
16
structural-error classification explicated in Neder, 527 U.S. at
7-15, and cases that followed -- as the court of appeals itself
explained. Pet. App. 16a n.4.
As lower courts have appropriately
recognized post-Neder, this Court’s “jurisprudence is increasingly
wary of recognizing new structural errors,” and, “[i]n recent
years, the Court has routinely rejected arguments that additional
specific categories of errors should be considered structural.”
United States v. Brandao, 539 F.3d 44, 60 (1st Cir. 2008).
Moreover, “[i]n nearly all of [the] cases” petitioner cites
-- including the only post-Neder case, United States v. Ginyard,
444 F.3d 648, 654-655 (D.C. Cir. 2006) -- “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),” and “[t]he 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,’” Curbelo, 343 F.3d at 292-293 (Wilkins,
C.J., dissenting). 2
No similar concerns are implicated here.
2 See Araujo, 62 F.3d at 934 (“[T]he
record lacks the requisite
support for the district court’s determination that [the juror]
should [have] be[en] dismissed for just cause.”); Patterson, 26
F.3d at 1129 (“[T]he judge below made no attempt to learn the
precise circumstances or likely duration of the twelfth juror’s
absence.”); Essex, 734 F.2d at 843 (“[T]he court denied defendant
her right to the unanimous verdict of 12 jurors without any finding
that anything did ‘happen’ to any one of them so that he was
‘unable’ to participate.”); Ginyard, 444 F.3d at 655 (“Because the
record does not support the finding of good cause necessitating
17
Petitioner does not seek review of the district court’s
determination that good cause existed to dismiss Juror No. 2 (or
any other juror) based on the court’s finding that that juror
developed an actual bias against the government during the trial.
See Pet. App. 10a.
And the appropriate dismissal of a biased juror
that occurred slightly before deliberations, see pp. 14-15, supra,
bears
little
resemblance
to
situations
in
which
courts
have
dismissed impaneled jurors without just cause -- and certainly
cannot
be
said
to
have
“necessarily
render[ed
petitioner’s]
criminal trial fundamentally unfair or an unreliable vehicle for
determining guilt or innocence.”
c.
Neder, 527 U.S. at 9.
Petitioner further contends (Pet. 13, 15-18) that the
Court should decide whether nonconstitutional errors can ever be
structural.
But a majority of the active judges on the court of
appeals made clear that they view that question as open in the
Second Circuit.
Pet. App. 68a, 90a.
Accordingly, this Court’s
intervention on that broader question is unwarranted in this case.
2.
Petitioner does not dispute that, under Williams, the
Sixth Amendment allowed an 11-person jury to return the verdict at
his
trial.
Petitioner
contends
(Pet.
22-36),
however,
that
Williams should be overruled because it “is an egregiously wrong
decision” that is inconsistent with historical practice and this
Court’s precedents.
For the reasons stated in the government’s
dismissal, the district court abused its discretion in dismissing
the holdout juror.”).
18
brief in opposition to the petition for a writ of certiorari in
Parada v. United States, No. 25-166, petitioner’s request to
overturn Williams lacks merit.
16 (filed Dec. 8, 2025). 3
Br. in Opp., Parada, supra, at 7-
As described in that brief, see id. at
8-11, and contrary to petitioner’s contention (Pet. 24-30), the
Court’s analysis in Williams extensively addressed the common-law
history of the Sixth Amendment’s jury trial right.
And as further
explained in that brief, see Br. in Opp., Parada, supra, at 1416, and contrary to petitioner’s contention (Pet. 22-26, 32), this
Court’s decision in Williams has not been undermined by its later
decisions in Ramos v. Louisiana, 590 U.S. 83 (2020), and Ballew v.
Georgia, 435 U.S. 223 (1978) (plurality opinion).
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
D. JOHN SAUER
Solicitor General
A. TYSEN DUVA
Assistant Attorney General
ANN O’CONNELL ADAMS
Attorney
JANUARY 2026
Petitioner is being served with a copy of the government’s
brief in Parada.
3
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.