# Petition — Foster v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1433%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 465 U.S. 1103 ## Text 83-1366 Office Supreme Court, US - FILED NO. FEB 16 1984 IN THE ALEXANDER L. STEVAS. SUPREME COURT OF THE E —— October Term, 1983 GREGORY FOSTER, Petitioner, vs. UNITED STATES OF AMERICA, Respondent. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Law Offices of PANCER & SHERMAN By: Michael Pancer Suite 1100 520 “E”’ Street San Diego, CA 92101-6278 (619) 236-1826 Attorney for Petitioner The Brief Shop ¢ | cgal Printers ¢ (213) 877-8620 QUESTIONS PRESENTED A. Should the trial court have granted a mistrial rather than ordering the seating of an alternate juror during the sixth day of deliberations? B. Did the change of circumstances permit petitioner to withdraw from the Stipulation which waived the manditory requirements of Rule 24(c), Federal Rules of Criminal Procedure? C. Was it proper for the trial court to give a modified Allen instruction? TABLE OF CONTENTS QUESTIONS PRESENTED TABLE OF AUTHORITIES OPINIONS BELOW JURISDICTION CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED STATEMENT OF THE FACTS REASONS WHY THE WRIT SHOULD BE GRANTED ARGUMENT THE CIRCUMSTANCES SURROUNDING THE JURY'S DELIBERATIONS NECESSITATED THE GRANTING OF A MISTRIAL. (1) Rule 24(c) Waiver (2) Allen Instruction CONCLUSION APPENDIX A OPINION, UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT, Filed July 26, 1983 TABLE OF AUTHORITIES Cases Jenkins v. United States (1965) 380 U.S. 445, 85 S.Ct. 1059 41 Leser v. United States 358 F.2d 313 (9th Cir.) cert. dismissed, 385 U.S. 802 30 87 S.Ct. 10 (1966) 31, 34-36 United Staes v. Allison 481 F.2d 468, (5th Cir. 1973) aff'd after remand, 487 F.2d 339 (5th Cir. 1973) cert. denied, 416 U.S. 982 94 S.Ct. 2383 (1974) 29 United States v. Beattie 613 F.2d 762 (9th Cir.) cert. denied, 446 U.S. 892 100 S.Ct. 2962 (1980) 39, 40, 45 United States v. Fioravanti 449 F.2d 407, (3rd Cir.) cert. denied, 396 U.S. 837, 90 S.Ct. 97 (1969) 39 United States v. Goldstein (1973) 479 F.2d 1061 48 United States v. Hayutin 398 F.2d 944, (2nd Cir.) cert. denied, 393 U.S. 961 89 S.Ct. 400 (1968) sub.app. 29, 30 iii. U. S. v. Hillard 701 F.2d 1052 (2nd Cir.) cert. denied, 103 S.Ct. 2431 (1983) 37, 38 United States v. Hooten 662 F.2d 628 (9th Cir. 1981) 45 United States v. Lamb 529 F.2d 1153 (9th Cirl975) (en banc) 30, 38 United States v. Mason 658 F.2d 1263 (9th Cir. 1981) 40, 47 United States v. Nash 414 F.2d 234 (2nd Cir.) cert. denied, 396 U.S. 940 90 S.Ct. 375 (1969) 30 United States v. Phillips 664 F.2d 971 (Sth Cir. 1981) cert. denied 102 S.Ct. 2965 (1982) 37 United States v. Seawell 550 F.2d 1159 (9th Cir. 1977) 47 United States v. Silvern 484 F.2d 879 (7th Cir. 1973) (en banc) 39 United States v. Thomas 449 F.2d 1177 mC. Car. i973) 39 iv. Statutes California Penal Code § 1089 28 21 U.S.C. § 841 (a) (1) 2, 4, § 21 U.S.C. § 846 2, 28 28 U.S.C. § 1254(1) 8 Rules Federal Rules of Criminal Procedure: Rule 23(b) 17, 38 Rule 24(c) passim Rule 24(0) 17 Texts Orfield, Trail Jurors in Federal Criminal Cases 29 F.R.D. 43 (1961) 26s a7 3 L. Ordfield, Criminal Procedure Under the Federal Rules 94 (1966) 26, 28 Paisley, The Federal Rule on Alternate Jurors 51 A.B.A.J. 1044 (1965) 28 C. Wright, Fed. Practice & Procedure (1969), Vol. 2 § 388, p. 52 31 Constitutions United States Constitution: 5th Amendment 19 6th Amendment 19 Instructions Allen Instructions 36-48 Miscellaneous American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Trial by Jury (approved draft 1968) § 2.7 28, 29 Preliminary Draft of Proposed Amendments to the Federal Rules of Criminal Procedure 91 F.R.D. 338 (1981) 17 Report of the Jury Committee of the Judicial Conference of the United States (March 1973 at 7-8) 29 vi. IN THE SUPREME COURT OF THE UNITED STATES October Term, 1983 GREGORY FOSTER, Petitioner, vs. UNITED STATES OF AMERICA, Respondent. ’ PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT This is a petition for GREGORY FOSTER for a Writ of Certiorari to review the Opinion filed by the United States Court of Appeals for the Ninth Circuit on July 26, 1983, affirming petitioner's convic- tion for conspiracy to possess heroin with intent to distribute in violation l. of 21 U.S.C. §§ 841(a)(1) and 846, and numerous substantive counts of posses- sion of heroin with intent to distribute in violation of 21 U.S.C. § 841l(a) (1). The United States Court of Appeals for the Ninth Circuit, among its various rulings, held that the petitioner and his counsel voluntarily chose to waive the mandatory language of Rule 24(c), Federal Rules of Criminal Procedure, in agreeing to proceed with an 1l-person jury. Specifically, the Court concluded that neither the petitioner nor his counsel were initially coerced into stipulating to the substitution of an alternate juror after deliberations had begun, and that the subsequent change in circumstances did not require the trial court to relieve them from the stipula- tion. In addition, the Court,of Appeals 2. also held that the trial court did not abuse its discretion by the giving of an Allen charge on the fifth day of delib- erations. OPINIONS BELOW To the petitioner's knowledge, the Opinion in the United States Court of Appeals for the Ninth Circuit, affirming petitioner's conviction, has been offi- cially reported at 711 F.2d 871 (1983). (A copy of the Opinion is attached to the Appendix hereto.) JURISDICTION 1. On April 30, 1981, the Federal Grané Jury for the Southern District of California returned a 27 count Indict- ment against petitioner and 30 other persons. Count One charged all of the defendants in a conspiracy under Title 21, United States Code Sections 841(a)(1) and 846, to possess with intent to distribute heroin. The remaining counts charged petitioner individually and certain defendants on specific dates with the substantive act of possession of heroin with intent to distribute in violation of Title 21, United States Code Section 841(a)(1l). 2. On October 23, 1981, at the sug- gestion of the trial court, a written Stipulation was entered into whereby all parties agreed to waive the requirement of Rule 24(c), Federal Rules of Criminal Procedure, and to the retention of the first two alternate jurors. During the sixth day of deliberations, after a partial verdict had been returned acquitting one of the defendants and the trial court had given a modified Allen charge, the court received a note from the jury concerning the difficulties one juror was experiencing and his wish to be relieved. After meeting with this juror in chambers in the presence of all counsel, the court indicated its inten- tion to release this juror. Counsel objected to the juror being excused and renewed their motion for a mistrial. The court again denied the motion for a mistrial and again stated that it was prepared to substitute an alternate for this juror pursuant to the Stipulation. ‘Seatentte:; six of the seven defendants on trial indicated that they were wil- ling to go with the 11 remaining jurors rather than with the seating of the alternate juror. The court agreed to follow this procedure and instructed the ll jurors to resume their deliberations as to all of the defendants except the one defendant who wanted the alternate seated. In the afternoon of the follow- ing day, the jury returned a verdict of guilty against petitioner on Counts One- Seven, Nine-Twenty and Twenty-Three. 3. On December 7, 1981, petitioner was sentenced to the custody of the Attorney General for a period of fifteen (15) years and fined the amount of $25,000 on Count One; a period of three (3) years in custody and a fine of $25,000 on Counts Two-Seven, to run consecutive to the sentence imposed on Count One; a period of fifteen (15) years and a $25,000 fine on Counts Nine- Twenty, to run concurrent with the sen- tences on Count One and Counts Two- Seven. In addition, a Special Parole Term of Twenty (20) years was imposed on Counts Two-Seven and Nine-Twenty, to run concurrently. On Count Twenty-Three, petitioner was placed on probation for a period of five (5) years to run consecu- tive to the sentences imposed on the other counts. Petitioner thereafter filed a timely Notice of Appeal. 4. On July 26, 1983, the United States Court of Appeals for the Ninth Circuit affirmed petitioner's convic- tion. Petitioner sought further review of the Panel's Opinion from the entire Court by filing a Petition for Rehearing and Suggestion for Rehearing En Banc, but the suggestion for an en banc rehearing was rejected on December 13, 1983. 5. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1). CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED 1. Rule 24(c), Federal Rules of Criminal Procedure. "Rule 24. Trial Jurors (c) Alternate Jurors. The court may direct that not more than 6 jurors in addition to the regular jury be called and impanelled to sit as alter- nate jurors. Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become or are found to be unable or dis- qualified to perform their duties. Alternate jurors shall be drawn in the same manner, shall have the same qualifications, shall be subject to the same examina- tion and challenges, shall take the same oath and shall have the same functions, powers, facilities and privi- leges as the regular jurors. An alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict. Each side is enti- tled to 1 peremptory chal- lenge in addition to those otherwise allowed by law if 1 or 2 alternate jurors are to be impanelled, 2 peremptory challenges if 3 or 4 alter- nate jurors are to be impan- elled, and 3 peremptory chal- lenges if 5 or 6 alternate jurors are to be impanelled. The additional peremptory challenges may be used against an alternate juror only, and the other peremp- tory challenges allowed by these rules may not be used against an alternate juror." 2. Title 21, United States Code Section 84l(a) (1). "841 Prohibited Acts. A-Unlawful Acts. (a) Except as authorized by this subchapter, it shall be unlawful for any person know- ingly or intentionally -- (1) to manufacture, distri- bute, or dispense, or possess with intent to manufacture, distribute, 9. or dispense, a controlled substance.” 3. Title 21, United States Code Section 846. "846 Attempt and conspiracy. Any person who attempts or conspires to commit any offense defined in this sub- chapter is punishable by imprisonment or fine or both which may not’ exceed. the maximum punishment prescribed for the offense, the commis- sion of which was the object of the attempt or conspir- acy.” STATEMENT OF THE FACTS At the suggestion of the trial court, 2/ a written Stipulation was entered into and filed October 23, 1981, 1/ The court specifically stated that if a problem arose with one of the jurors forcing a mistrial, counsel would be required to retry the matter the next week when the remaining defendants, who had previously been severed, were sched- uled for trial. 10. whereby all parties agreed to waive the requirement of Rule 24(c), Federal Rules of Criminal Procedure, and to the reten- tion of the first two alternate jurors. After returning a partial verdict on the fourth day of deliberations acquitting one of the defendants, the court received a note the following day which stated that one of the jurors was requesting to be released as the length of the proceeding was causing a strain on his family and job situation. After discussion with counsel, the court responded by asking the jury to continue its deliberations. Later that same day, the court received another note stating that a second juror wanted to be released as the jury "seem[ed] to be at a stand off" and "there is no clear end in sight". When the court indicated that it was at this point planning to give a modified Allen charge, all counsel objected and moved for a mistrial. The court denied the motion, and again expressed its intention that if the jury indicated it was deadlocked, the court would give the modified Allen instruction. When the jury foreman indicated that a few of the jurors believed they were “hopelessly deadlocked", the court read this instruction. The following day, being the sixth day of deliberations, the court again received a note from the jury concerning the difficulties the one juror was experiencing and his wish to be releas- ed. After meeting with this juror in chambers in the presence of all counsel, the court indicated its intention to 12. release this juror. Counsel objected to the juror being excused and again renewed their motion for a mistrial. The court again denied the motion for a mistrial and again stated that it was prepared to substitute an alternate for this juror pursuant to the Stipulation. Counsel thereafter met with their clients to discuss the possibility of going with an ll-person jury, rather than seating the alternate. At this point, one of co-counsel stated that upon a re-reading of Rule 24(c), it was apparent that the seating of an alter- nate juror was not permissible under any circumstances at this stage of the pro- ceedings, and that counsel were request- ing to withdraw from the stipulated agreement. Counsel for petitioner con- curred on the grounds that at the time 13. the Stipulation was entered into, the pending situation was never envisioned, and that due to one of the defendants already having been acquitted, it was not appropriate to seat another juror after six days of deliberations. The court responded to these comments by Stating that unless there was unanimity among all of the defendants to go for- ward with 11 jurors rather than insert- ing the alternate, the court would pro- ceed pursuant to the Stipulation and seat the alternate. When one of the defendants stated that he preferred the alternate, the trial court excused the juror, and indicated that an alternate juror would be substituted on his behalf. On the following Monday, November 2, 1981, the six defendants who indicated 14. that they would be willing to go with the 11 remaining jurors rather than with the alternate requested the court to instruct those 1l to withdraw the one defendant's case from their considera- tions and to proceed with their deliber- ations as to the other defendants. After inquiring of the defendant and counsel that this was their desire, the court agreed to follow this procedure and instructed the ll jurors to resume their deliberations as to all of the defendants except the one defendant. In the afternoon of the following day, November 3, 1981, the jury returned a verdict of guilty against petitioner on Counts One-Seven, Nine-Twenty and Twenty-Three. 15. REASONS WHY THE WRIT SHOULD BE GRANTED Most commentators and courts have con- tinually doubted the desirability and constitutionality of permitting an alternate juror to be substituted if a regular juror becomes unable to perform his duties after the case has been sub- mitted to the jury. There appears to be universal agreement that the danger of prejudice to the defendant is too great to allow a juror who is unfamiliar with the prior deliberations to suddenly join the group and participate in the voting without the benefit of earlier group discussion. This is so because the inherent coercive effect upon an alter- nate who joins a jury leaning heavily toward a guilty verdict may result in the alternate reaching a_ premature 16. guilty verdict. Conversely, a _ lone juror holding out for acquittal may find himself pressured to feign illness or incapacity to place the burden of deci- sion on a waiting alternate, thus, sig- nificantly limiting the accused's right to a mistrial. Recognizing the inherent problems of such a procedure, the Preliminary Draft of Proposed Amendments to the Federal Rules of Criminal Procedure, 91 F.R.D. 338 (1981), chose to recommend to amend Rule 23(b) by permitting deliberations to continue with 11 jurors rather than amending Rule 24(0) and allowing the substitution of an alternate once delib- erations had begun. The Advisory Com- mittee similarly commented on the con- stitutional difficulties involved in the substitution plan due to the inability te of a court to counter the influence and intimidation the new juror would undoubtedly be subject to by virtue of being a newcomer to the deliberations. It was precisely for these very rea- sons that petitioner and his counsel decided to proceed with an 1l-person jury rather than agreeing to the seating of the alternate. But, because of the circumstances which had occurred during the six days of deliberations, peti- tioner and counsel were forced to agree to this procedure as the “lesser of two evils.” Once the jury had reached a partial verdict and then indicated it was “hopelessly deadlocked" on two occa- sions, the only proper action that should have been taken was the granting of a mistrial. Instead, the trial court gave a modified Allen instruction and 18. then released the one juror setting up the "dammed if I do, dammed if I don't" decision. Considering the Fifth Amend- ment due process and Sixth Amendment ramifications of this situation, cert- iorari must be granted to remedy the injustice done in this case. ARGUMENT THE CIRCUMSTANCES SURROUNDING THE JURY'S DELIBERATIONS NECESSITATED THE GRANTING OF A MISTRIAL. In order to properly evaluate the issues involved in this argument, it is first necessary to again review the sequence of events which eventually led to the jury's finding of guilty: 1. Toward the latter part of the trial, the court first suggested the possibility of stipulating to the reten- tion of the alternate jurors, indicating 19. that if a mistrial had to be declared because of a problem with one of the jurors, counsel would be required to go to trial the following week with the remaining severed defendants. 2. Just prior to the end of the trial, the court again brought up the idea of retaining the alternate jurors. In fact, the court prepared the written Stipulation wherein all parties agreed to waive the requirements of Rule 24(c), Federal Rules of Criminal Procedure, and to the retention of the first two alter- nate jurors. 3. After a partial verdict had been returned on the fourth day of delibera- tions acquitting one of the defendants, the court received a note the following day which stated that one of the jurors was requesting to be released as the 20. length of the proceedings was causing a strain on his family and job situation. After discussion with counsel, the court responded by asking the jury to continue its deliberations. 4. Later that same day, the court received another note stating that a second juror wanted to be released as the jury "“seem[ed] to be at a standoff" and “there is no clear end in sight." When the court indicated that it was at this point planning to give a modified Allen charge, all counsel objected and moved for a mistrial. The court denied the motion and again expressed its intention that if the jury indicated it was deadlocked, the court would give the modified Allen instruction. When the jury foreman indicated that a few of the jurors believed they were “hopelessly 21. deadlocked" the court read this instruc- tion. 5. During the sixth day of delibera- tions, the court again received a note from the jury concerning the difficulty the one juror was experiencing and his wish to be released. After meeting with this juror in chambers in the presence of all counsel, the court indicated its intention to release this juror. Coun- sel objected to the juror being excused and again renewed their motion for a mistrial. The court again denied the motion for a mistrial and again stated that it was prepared to substitute an alternate for this juror pursuant to the Stipulation. 6. Counsel thereafter met with their clients to discuss the possibility of going with an ll-person jury, rather 22. than seating the alternate. At this point, one of co-counsel stated that upon a re-reading of Rule 24(c), it was apparent that the seating of an alter- nate juror was not permissible under any circumstances at this stage of the pro- ceedings, and that counsel were request- ing to withdraw from the stipulated agreement. Counsel for petitioner con- curred on the grounds that at the time the Stipulation was entered into, the pending situation was never envisioned, and that due to one of the defendants already having been acquitted, it was not appropriate to seat another juror after six days of deliberations. The court responded to these comments by Stating that unless there was unanimity among all of the defendants to go for- ward with ll jurors rather than 23. inserting the alternate, the court would proceed pursuant to the Stipulation and seat the alternate. When one of the defendants stated that he preferred the alternate, the trial court excused the juror, and indicated that an alternate juror would be substituted on his behalf. 7. Prior to the alternate being seated, the six defendants who indicated that they would be willing to go with the 11 remaining jurors rather than with the alternate requested the court to instruct those 1l to withdraw the one defendant's case from their considera- tion and to proceed with their delibera- tions as to the other defendants. After inquiring of the defendants and counsel that this was their desire, the court agreed to follow this procedure and 24. instructed the 1l jurors to resume their deliberations as to all of the defend- ants except the one defendant. 8. In the afternoon of the following day, the jury returned its verdict. It is submitted that based upon these events, the trial court should have granted a mistrial when requested on numerous occasions, and that its failure to do so constituted an abuse of discre- tion of such magnitude as to justify the granting of certiorari to review the injustice perpetrated by the jury's verdict. (1) Rule 24(c) Waiver Rule 24(c) of the Federal Rules of Criminal Procedure states in pertinent part: 25. "Alternate jurors in the order in which they are called shall replace jurors who, prior to the time _ the jury retires to consider its verdict, become or are found to be unable or disqualified to perform their duties. .. An alternate juror who does not replace a reqular juror shall be discharged after the jury retires to consider its verdict. - « «" (Emphasis added.) The present language of Rule 24(c) is little changed from a preliminary draft prepared in February, 1944. 3 OL. Orfield, Criminal Procedure Under the Federal Rules 94 (1966). The draftsmen had previously considered and discussed the restriction against substituting an alternate once deliberations have begun. Id. at 94, 98; Orfield, Trial Jurors in 26. Federal Criminal Cases, 29 F.R.D. 43, 46, 53 (1961). A preliminary draft dated May, 1942, which contained a pro- posed rule that would have allowed sub- stitution of an alternate juror after the jury retired for deliberations, was submitted to the Supreme Court for com- ment. The court queried the rules com- mittee whether the committee had Satisfied itself that such a procedure would be desirable or constitutional. Orfield, Trial Jurors in Federal Criminal Cases, supra, 29 F.R.D. at 46. The draftsmen of the rules commit- tee did not adopt that proposed rule. It was feared that if such substitutions were permitted "“[t]he members of the regular jury might bring such influence on a dissenter as to disable him and then require an alternate. The 27. alternate may have been exposed to improper influences before he takes part as he does not previously sit in the jury room." 3 Orfield, Criminal Procedure Under the Federal Rules supra, at 94. While some states have adopted statu- tory criminal rules provisions allowing substitution of an alternate juror after deliberations have begun (e.q., Cal. Pen. Code §1089 (West); see Paisley, The Federal Rule on Alternate Jurors, 5l A.B.A.J. 1044, 1045 (1965)), the American Bar Association project on Minimum Standards for Criminal Justice, Standards Relating to Trial by Jury §2.7 (approved Draft 1968), rejected such substitution provisions. The A.B.A. advisory committee on the criminal trial believed that it was undesirable to 28. substitute a juror who had not had the benefit of prior deliberations. Id. §2.7 at 83. (See also Report of the Jury Committee of the Judicial Confer- ence of the United States (March 1973 at 7-8 (disapproving a proposed revision of Rule 24(c) that would retain jurors for possible substitution after delibera- tions had begun)). Two Circuit Courts of Appeals that have considered the question have held that the requirement that the alternate "shall be discharged" after the jury retires is a mandatory requirement that "should be scrupulously followed." United States v. Allison, 481 F.2d 468, 472 (5th Cir. 1973), aff'd. after remand, 487 F.2d 339 (5th Cir. 1973), cert.den., 416 U.S. 982, 94 S.Ct. 2383 (1974): United States vy. Hayutin, 398 29. F.2d 944, 2nd Cir., cert.den., 393 U.S. 961, 89 S.Ct. 400 (1968), subsequent appeal sub. nom., United States v. Nash, 414 F.2d 234 (2nd Cir.) cert.den., 396 U.S. 940, 90 S.Ct. 375 (1969). In Leser v. United States, 358 F.2d 313 (9th Cir.), petition for cert. dismissed, 385 U.S. 802, 87 S.Ct. 10 (1966), however, the Ninth Circuit held that an alternate juror could be substituted for a dis- abled juror, even after deliberations had begun, if the defendant had expres- sly stipulated to such substition. Id. at 317. While Leser has not been over- ruled per se, it is clear that a later Ninth Circuit decision, United States v. Lamb, 529 F.2d 1153 (9th Cir. 1975) (en 30. banc), has totally undermined that hold- ing. 2/ In Lamb, a case factually similar to the one at bar, the district court judge directed an alternate juror to “stand by" in case she was needed, but then discharged her when the jury returned a verdict of guilty after four hours of deliberations spread over two days. The court, however, refused the verdict because it was inconsistent with the instructions. When one of the original jurors requested to be excused due to a 2/ one of the Nations most prestigious legal commentators, Professor Wright, in criticising the Leser decision, con- Cluded that "... it is reversible error, even though defendant may have consented, to permit an alternate to stay with the jury after they have retired to deliberate or to substitute an alternate. after deliberations had begun." C. Wright, Fed. Practice §& Procedure §388, Vol.2 at p. 52 (1969), quoted in U.S. v. Lamb, supra, at 1156. 31. personal problem, the court recalled the alternate and asked her to return to court. Over defense counsel's objection and motions re: mistrial, the court impaneled the alternate in the place of the other juror. The court then rein- structed the jury and told it to begin its deliberations anew. The newly con- stituted jury returned a guilty verdict after only 29 minutes of deliberations. After the final verdict was returned, the court sought and received assurances from the jury foreman and the alternate who had been substituted that the jury had begun deliberations anew and had discussed all the points of evidence. In reversing the conviction, the Court, with only two dissenters, con- cluded that the brief amount of time in which the second verdict was reached 32. clearly demonstrated that the alternate had been impermissibly coerced and that the newly constituted jury did not give conscientious, careful consideration to the case despite the trial court's instruction that it begin anew. Id. at 1156. The Court did not base the rever- sal on the length of the deliberations, however, stating that this factor was "essentially irrelevant" (Id. at 1156, n. 7), but rather rested its decision on the mere fact that the mandatory provi- sion of Rule 24(c) was violated. The Court noted some of the reasons under- lying Rule 24(c), most significantly the "inherent coercive effect" upon = an alternate juror who joins a jury after it has deliberated for some length of time and the possibility that a juror who disagreed with the other jurors 33. might be coerced into feigning incapacity to continue sitting on the jury. (Id. at 1156.) Relying on the Leser decision, the Government attempted to argue that there had been a stipulation by counsel per- mitting seating of the alternate juror. The Court rejected this contention but, for the purposes of the instant case, stated that even if there had been such a stipulation before the jury retired, "we could not hold that such a stipula- tion would remain effective after dramatic changes of circumstances, including the original jury's arrival at a guilty verdict and the court's, tele- phone call to the alternate is to advise her that her services wo /! no longer be required because the original jury had reached a verdict." Id. at 34. 1157. Turning to the situation in the case at bar, there can be no doubt that the proposal to retain the alternate jurors Originated with the trial court, was "strongly" urged by the trial court, and put in terms that if such a stipulation was not entered into, counsel and their clients would find themselves in trial again the following week in the event a mistrial was declared due to a problem with one of the jurors. This "set of facts" clearly distinguishes this case from Leser, where the district court judge did not urge the parties to enter into the stipulation and, indeed gave the parties every opportunity to refuse to do so. Leser v. United States, supra, 358 F.2d at 317. It is appellant's first contention, therefore, that the 35. apparent Rule 24(c) waiver approved in Leser, if still a viable precedent, cannot be applied to the instant case as the Stipulation was not entered into "freely and voluntarily,” and without any coercion. Beyond this question of the validity of the Stipulation, however, appellant additionally contends that he and his co-defendants had the absolute right to withdraw from the Stipulation due to the "dramatic changes of circumstances." As previously indicated, the jury had been deliberating for six days, had reached a partial verdict, had indicated they were "hopelessly deadlocked," received an Allen instruction, and, at least two of the jurors, had sent notes to the court stating that they wanted to be excused to go home. Under these circumstances, 36. which were totally unforeseen when the Stipulation was executed, counsel and their clients had every right to request to withdraw from the Stipulation, and to seek the declaration of a mistrial when the court indicated its intention to release the one juror. The failure of the court to permit withdrawal from the Stipulation and the intention to proceed under its terms to seat the alternate (which forced the decision to go with the 11 remaining jurors), constituted a clear abuse of discretion, and an even Clearer violation of Rule 24(c). Petitioner does recognize that in the recent decisions of United States v. Phillips, 664 F.2d 971 (5th Cir. 1981), cert.den., 102 S.Ct. 2965 (1982), and United States v. Hillard, 701 F.2d 1052 (2nd Cir.), cert.den., 103 S.Ct. 2431 37. (1983), both Circuit Courts of Appeals held that a violation of Rule 24(c) does not require a, reversal per se, absent a showing of prejudice. The Hillard Court specifically distinguished the Lamb case on the basis that there was no sugges- tion of a coercive effect on the ater nate juror, and that the district judge took sufficient precautions to ensure that they were not prejudiced. See, discussion, 701 F.2d at 1059-1061. While the proposed changes to Rule 23(b) and 24(c) will undoubtedly elimi- nate the necessity of having to consider this issue again in the future, the fact remains that at the time the instant case was decided, Lamb was the prevail- ing law in the Ninth Circuit. Due to the split of the Circuits on this impor- tant issue, therefore, it is 38. respectfully submitted that the granting of certiorari is imperative in this case. (2) Allen Instruction Unlike the three Circuits which have disapproved the giving of the Allen charge, >/ the Ninth Circuit has in "countless cases" approved an Allen charge. See United States v. Beattie, 613 F.2d 762-764 (9th Cir.), cert.den., 446 U.S. 892, 100 S.Ct. 2962 (1980), and cases cited therein. Even some of the Court's decisions, however, have expres- sed dissatisfaction with the giving of 3/ See U.S. v. Silvern, 484 F.2d 879, 883 (7th Cir. 1973) (en banc); U.S. v. Thomas, 449 F.2d 1177, 1187 (D.C. Cir. 1971); U.S. v. Pioravanti, 412 F.2d 407, 420 (3rd Cir.), cert.den., 396 U.S. 837, 90 S.Ct. 97 (1969). 39. the Allen charge. As recently stated by Judge Kennedy in United States vy. Mason, 658 F.2d 1263, 1266 (9th Cir. 1981): "We have noted... that it "stands at the brink of impermis- sible coercion,' United States v. Seawell, 550 F.2d 1159, 1163 (9th Cir. 1977), and that ‘even in the most acceptable form, [the Allen charge) approaches the ultimate permissible limits to which a court may go...‘ Sullivan yv. United States, 414 F.2d 714, 716 (9th Cir. 1969)." As a result, close scrutiny must be given to the actual charge and the cir- cumstances in which it was given to determine if it had a coercive effect upon the jury. United States v. Mason, supra; United States v. Beattie, supra; 40. see also Jenkins v. United States, 380 U.S. 445, 446, 85 S.Ct. 1059, 1060 (1965). In the instant case, after initially indicating that it rarely gave an Allen instruction, the court told counsel hat it was planning to give a modified Allen charge at the conclusion of the fifth day of deliberations if the jury indi- cated it was deadlocked. 4/ During the subsequent inquiry of the jury foreman, the court made the following statement: "Now, secondly, Ladies and Gentlemen, I, in speaking for all the parties here, deeply appreci- 4/ All counsel objected to the giving of any type of Allen charge and moved for a mistrial. The court denied the motion, and again expressed its inten- tion that if the jury indicated it was deadlocked, the court would give the modified Allen instruction. 4l. ate the work and intentions and the conscientious care given by this jury to the resolution of this case. This case is a very important case for the government and for each individual defen- dant. It's extremely important, if the matter be resolved under the instruction of the _ court, that it be resolved. You all understand that. As I say, we're deeply appreciative of the work that you have done for the past several days. Concerned that the emphasized language constituted the very essence of an Allen charge, counsel for appellant’ immedi- ately brought the matter to the court's attention and requested that another Allen instruction not be given. The 42. court responded that it did not consider this language to be an Allen instruction in any way, and thereafter gave following modified Allen charge: "Ladies and Gentlemen, I am going to ask that you resume your deliberations for a further period of time in an attempt to return a verdict. As I have told you, each of you must agree in order to return a verdict. You have the duty to consult with one another and to deliberate with a view of reaching an agreement if this can be done without violence to individual judgment. "Each juror must decide the case for himself or herself, but only after impartial considera- tion of the evidence with his or 43. the her fellow jurors. During the course of your deliberations, each of you should not hesitate to re-examine your own views and change your opinion if convinced it is erroneous. No juror, how- ever, should surrender his or her honest conviction as to- the weight and effect of ewidence sOlely because of the opinion of your fellow jurors or for the mere purpose of returning a ver- dict.* To determine whether the use of this modified Allen charge was appropriate, an appellate court should look at four factors: l. The form of the instruction; 44. 2. The period of deliberation following the Allen charge; 3. The total time of jury deliber- ation; and 4. The indicia of coerciveness or pressure upon the jury. See United States v. Hooton, 662 F.2d 628, 636 (9th Cir. 1981), discussing United States v. Beattie, supra. While the first two factors were not in dispute, petitioner submits that a close examination of the latter two factors should have led to the conclu- sion that the Allen charge was in fact coercive, and should not have been given. It must be remembered that even though the number of transcripts appear to make this case very lengthy, there were only 6-1/2 days in which evidence 45. was presented, the other 2 days being closing arguments. When the number of trial days, then, is taken into consid- eration with the fact that most of the evidence presented against the defen- dants involved direct sales of heroin to informants who were being monitored by Surveilling agents, there can be no question that the wording of any Allen charge, no matter how moderate, had to have a substantial coercive effect when given during the fifth day of delibera- tions. A similar argument can be made with regard to the last factor. At the time the modified Allen instruction was read, the court had already received two spe- cific statements from the jury that they "seem([ed) to be at a standoff", and later that they were "hopelessly 46. deadlocked.” The court responded to these statements first with the introductory remarks that this was a very important case for the Government and the individual defendants, and that if the jury could reach a decision under the instructions, that they should do so, >/ and thereafter with the reading of the modified Allen charge. Again, no matter how moderate the language used, the reading of the instruction had to have a coercive effect upon the jury. 5/ This statement was not balanced at all by a reminder to the jurors of their duty and obligation not to surrender consciously held beliefs simply to secure a verdict for either party. See U.S. v. Mason, supra, 658 F.2d at 1268. Accordingly, the statement should have been considered an Allen charge by the court as counsel contended, and the giving of a second charge thus consti- tuted automatic reversible error. See U.S. v. Seawell, 550 F.2d 1159, 1163 (9th Cir. 1977). 47. It is therefore submitted that con- Sidering all of these circumstances in which the modified Allen charge was given, that the case at bar was clearly not an appropriate one for such an instruction to be given after so many days of deliberations. It cannot be forgotten that the possibility of a hung jury is as much a part of our jury una- nimity scheme as are verdicts of guilty and not guilty. The declaration of a mistrial because of the inability of a jury to reach a unanimous verdict serves to protect the interests of the defen- dant in many cases. As the Second Circuit noted in United States v. Goldstein, 479 F.2d 1061, 1068 (1973): "Requiring a jury to continue deliberations despite genuine and irreconcilable disagreement more 48. often than not defeats the ends of public justice; not only will such compulsion needlessly waste judicial resources, it may coerce erroneous verdicts." CONCLUSION For the above-mentioned reasons, petitioner GREGORY FOSTER, respectfully requests that this Honorable Court grant the instant Petition for Writ of Cert- iorari. Dated: February 6, 1984 Respectfully submitted, LAW OFFICES OF PANCER AND SHERMAN MICHAEL PANCER Attorney for Petitioner 49. APPENDIX A For Publication UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, Vv. GREGORY FOSTER JOHNNIE LEE GIBSON BILLY JACKSON RONALD H. WILSON, Defendants-Appellants. Nos. 81-1765 81-1779 81-1778 82-1057 DC No. CR-81-0584-WBE OPINION FILED JUL 26, 1983 PHILLIP B. WINBERRY CLERK, U.S. COURT OF APPEALS Appeal from the United States District Court for the Southern District of California William B. Enright, District Judge, Presiding A-l. Argued and submitted November 4, 1982 Before: ROBB,* SCHROEDER and ALARCON, Circuit Judges. ALARCON, Circuit Judge: Appellants Gregory Foster, Johnnie Gibson, Billy Jackson, and Ronald Wilson were each found guilty of conspiracy to possess heroin with intent to distrib- ute, in violation of 21 U.S.C. §§ 841 (a) (1) and 846. In addition, appellant Foster was convicted of twenty counts of @®@Sssession of heroin with intent to distribute, in violation of 21 U.S.C. § 841(a)(1); appellants Jackson and Wilson were found guilty of one count of pos- session of heroin with intent to dis- tribute; and appellant Gibson was found guilty of two counts of possession of * Hon. Roger Robb, United States Cir- cuit Judge for the District of Columbia Circuit, sitting by designation. A-2. heroin with intent to distribute, all in violation of 21 U.S.C. § 84l(a)(1). We affirm the convictions on all counts. Appellants have raised numerous issues on this appeal which we discuss below. I. SUFFICIENCY OF THE EVIDENCE A. Conspiracy Gibson, Wilson, and Jackson contend that the evidence was insufficient to establish that they participated in the conspiracy charged in the indictment. When reviewing the sufficiency of the evidence to support a criminal convic- tion, the critical inquiry is whether, "after viewing the evidence in the light most favorable to the prosecution any rational trier of fact could have found A-3. the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). We must determine whether the trier of fact could reasonably arrive at its conclusion. All reasonable inferences must be drawn in favor of the govern- ment, and circumstantial evidence is sufficient to sustain a_ conviction. United States v. Fleishman, 684 F.2d 1329, 1340 (9th Cif.), cert. denied;, 103 S.Ct. 464 (1982). In reviewing the sufficiency of the evidence, we must first determine whether the charged conspiracy was proved. The government produced evidence at trial which showed that Foster was the head of a group of persons who were engaged in the illegal distribution and sale of heroin in the San Diego area. The organization operated in the fol- lowing manner. The heroin was sold in the streets by pushers. When a customer was obtained for a supply of heroin, the pusher would telephone an answering service number and leave a message for his supplier. The supplier in turn would be contacted through his beeper. The supplier would obtain the telephone number of the pusher and determine the amount of heroin necessary to fill the order, This amount would then be deliv- ered to the pusher. Foster and others obtained and packaged the heroin for such distribution and sale. fThe heroin was cut with dextrose and placed in balloons which were placed in plastic bags. Each plastic bag contained eleven A-5. balloons. The wholesale price to the pusher for eleven balloons was $195.00. The pusher could then sell the heroin at $25.00 for each balloon. The pusher thus realized a profit of $80.00 for each package of eleven balloons sold. The foregoing evidence is clearly sufficient to prove the existence of the conspiracy charged in the indictment. We next proceed to analyze the evi- dence offered by the government to con- nect Gibson, Wilson, and Jackson. 1. Gibson was linked to the Foster enterprise by a substantial amount of evidence. Minyon Logan testified that Gibson gave her a beeper and that on numerous occasions she received packages of heroin from him to sell. Logan's ledger contained many references to drug transactions involving Gibson. Her A-6. ledger also contained many names of persons given to her by Gibson as poten- tial “runners” (pushers). Further, she testified that she observed Foster and Gibson, together, cutting and filling balloons. A beeper was found during the search of Gibson's residence. Invoices for the beeper showing Gibson's name were also discovered. Gibson was also linked to the Foster organization through the controlled heroin purchase made by Harvey Callier and Marco Banks, on Sep- tember 25, 1979. This purchase involved the use of beepers. Gibson was con- nected to the purchase because the delivery of the heroin was made in a car registered to him. 1/ 2. Wilson Dixie Boyles testified that she made several heroin purchases directly from Wilson, including one purchase on May 8, 1980 involving two bags of heroin. Wilson's residence was searched on May 8, 1981. A traffic ticket was dis- covered during the search. It was received by Wilson while he was driving a car registered to Foster. Wilson's personal phonebook contained the names Gibson, Turner, and the initials "F.A." The evidence showed that Turner and Fred Arnold were members of the Foster enter- prise. The evidence also showed that Wilson had rented a beeper from the same firm used by other members of the Foster group. Wilson was shown to have received numerous calls on the beeper. 2/ A-8. 3. Jackson On December 13, 1979, Harvey Callier purchased two balloons of heroin from Jackson. This transaction was recorded. Jackson's statements during the course of the transaction showed familiarity with the Foster organization. Jackson told Callier that Greg (Foster) had quit and that neither he nor his "“lieuten- ants” had any drugs. Moreover, Jackson referred to the recent arrest of two members of the organization. He stated that the arrests had scared Foster and that he was going to lay low for awhile. Evidence was introduced that the ini- tials "B.J." were found on pieces of paper at the homes of Foster, Fulford and Cordova. Fulford and Cordova were heavily involved in the Foster organiza- tion. Logan stated that Gibson had given her the name of "B.J." as a potential runner. This was corroborated by the fact that "B.J." was written in her ledger. There was evidence in the record that Jackson was known by the initials B.J. "Once the existence of a conspiracy is shown, ‘evidence establishing beyond a reasonable doubt a connection of a Gefendant with the conspiracy, even though the connection is_ slight, is sufficient to convict him with knowing participation in the conspiracy.'" United States v. Fleishman, 684 F.2d at 1340-41 (quoting United States v. Dunn, 564 F.2d 348, 357 (9th Cir. 1977) (emphasis in original)). We are persuaded from a review of the entire record and the specific evidence A-10. summarized above that there was ample evidence of more a than slight connec- tion between Gibson, Wilson and Jackson to the conspiracy. B. Substantive Counts Wilson challenges his conviction on Count Thirteen for possession of two balloons of heroin on May 8, 1980 with intent to distribute. Wilson was charged in this count with a sale of heroin made to Boyles. Boyles' uncor- roborated testimony was heavily impeached by prior inconsistent state- ments. Boyles' testimony was not inherently implausible. Her testimony was suffi- cient to support the conviction. Because a witness' credibility is a matter for the jury to resolve, there A-ll. was sufficient evidence to support the conviction on the substantive count. United States v. Rojas, 554 F.2d 938, 943 (9th Cir. 1977). Jackson challenges his conviction on Count Seven for possession of two bal- loons of heroin on December 13, 1979, with intent to distribute. Jackson contends that there is no proof that the drug purchased was in fact heroin. We disagree. Agent Ashcraft testified that the two balloons sold by Jackson on that date were later determined to be heroin. The above testimomy is arguably hear- Say. Jackson, however, did not object to its admission. Thus, the general rule applies that "where there is no objection to hearsay evidence, the jury may consider it for A-12. whatever value it may have; such evi- dence is to be given its natural proba- tive effect as if it were in law admiss- ible." United States v. Johnson, 77 F.2d 1304, 1312 (5th Cir. 1978); United States v. Bey, 526 F.2d 851, 855 (5th Cir.), cert. denied, 426 U.S. 937 (1976). It is also possible that Ashcraft was testifying as to his own opinion based on his prior education and training, field observations, and a chemical anal- ysis of the contents of the balloons. It is true that no foundation for such an opinion appears in the record. There was no objection on this ground. An objection would have afforded the government an opportunity to present whatever evidence was available to lay a foundation for the admission of the contents of the balloons. It is our view that sufficient evi- dence was introduced to support Jackson's conviction on the substantive count. II. SUFFICIENCY OF THE AFFIDAVIT On May 8, 1981, government agents executed a series of search warrants at the residences of the defendants. The warrants were based on allegations con- tained in a single affidavit presented to the magistrate by Agent Williams. Conceding that the affidavit con- tained sufficient information to justify their arrest, Foster and Gibson instead contend that the affidavit did not establish probable cause to search their A-14. residences. Foster additionally argues that the trial court should have granted his motion for a hearing under Franks v. Delaware, 438 U.S. 154 (1978), because Agent Williams intentionally omitted from his affidavit allegedly exculpatory information. The trial court rejected the probable cause challenges’ before trial. We review the court's determination that the affidavit was sufficient to provide probable cause to issue the warrant under the clearly erroneous’ standard. See United States v. O'Connor, 658 F.2d 688, 690-91 & n.5 (9th Cir. 1981). The appellants are correct that prob- able cause to search a residence does not automatically follow from probable cause to believe a suspect guilty of a crime. United States v. Valenzuela, 596 A-15. F.2d 824, 828 (9th Cir.), cert. denied, 441 U.S. 965 (1979). To justify the search of a residence, the facts sup- porting the warrant must show probable cause to believe that the evidence sought is presently in the place to be searched. Id. The affidavit in support of a warrant is to be given a common sense and real- istic interpretation. United States v. Chesher, 678 F.2d 1353, 1359 (9th Cir. 1982), Such a reading may support an inference of probable cause "to believe that criminal objects are located in a particular place to which they have not been tied by direct evidence.” Valenzuela, 596 F.2d at 828. A-16. A. Foster Read as a whole, the affidavit in this case suffices to justify the search of Foster's residence. The affidavit disclosed that Foster headed a major heroin distribution ring. On several occasions during the investigation, narcotics were seen at Foster's resi- dence. One informant had overheard Foster admit that he maintained phony records to deceive the Internal Revenue Service (hereinafter IRS). Moreover, Williams stated in the affidavit that based on his eleven years' experience as a narcotics agent, he believed that evidence of the defen- dants' drug dealings would be found at defendants’ residences. Williams’ Opinion was an important factor to be considered in the magistrate's A-17. determination whether probable cause existed. See United States v. Johnson, 660 F.2d 749, 753 (9th Cir. 1981), cert. denied, 455 U.S. 912 (1982); Valenzuela, 596 F.2d at 828-29; cf. United States v. Dubrofsky, 581 F.2d 208, 213 (9th Cir. 1978), cert. denied, 454 U.S. 950 (1981) ("(h)eroin importers commonly have heroin and related paraphernalia where they live"). In these circumstances, the trial court did not err in finding the affidavit sufficient to permit an inference that evidence would be found in Foster's residence. Foster argues that the information contained in the affidavit was too "stale" to support a finding of probable cause. He points out that the most recent of the affidavit's references to A-18. his residence concerns a February 1980 drug sale. The passage of time is not neces- sarily a controlling factor in determin- ing the existence of probable cause. The court should also evaluate the nature of the criminal activity and the kind of property for which authorization to search is sought. United States v. Reid, 634 F.2d 469, 473 (9th Cir. 1980), cert. denied, 454 U.S. 829 (1981). Tested under this standard, Foster's contention fails. First, contrary to Foster's argument, the affidavit linked Foster to a heroin sale in February 1981, only three months before the warrant was executed. Cf. id. at 472-73 (probable cause to believe that documents would be found in May 1978 though events described in A-19. affidavit had occurred in February and March 1977); United States v. DiMuro, 540 F.2d 503, 515-16 (lst Cir. 1976), cert. denied, 429 U.S. 1038 (1977) (information in affidavit some four months old; finding of probable cause upheld). Second, the affidavit sought evidence of a large-scale, ongoing criminal organization, not evidence relating to a completed criminal act. See United States v. Huberts, 637 F.2d 630, 638 (9th Cir. 1980), cert. denied, 451 U.S, 975 (1981). Foster admitted that he maintained bogus records to deceive the IRS, suggesting that he was in the busi- ness of selling the heroin linked to him but did not wish to disclose his income from illegal transactions. This state- ment supports an inference that the criminal conduct was of a continuing nature. Id. Based on this information, the trial court could properly find probable cause to search the Foster residence for evidence of such activity. Foster also contends that the trial court erred in denying his motion: for Pranks' hearing because Agent Williams intentionally omitted from his affidavit reference to three tape-recorded conver- sations suggesting that Foster had retired from the drug selling business. We have reviewed the affidavit care- fully, and find that only one of the statements -- Foster's January 28, 1980 assertion to Logan that Foster had "quit" -- could arguably have affected the finding of probable cause to search Foster's residence. A-21. In Pranks, the Supreme Court held that when a defendant makes a substan- tial showing that an affidavit contains a false statement, knowingly or reck- lessly made and necessary to the finding of probable cause, a hearing must be held at the defendant's request. If the defendant's contention is established by a preponderance of evidence, and after deletion of the false material the affi- davit is insufficient to establish prob- able cause, the search warrant must be set aside and the fruits of the search suppressed. 438 U.S. at 155-56; United States v. Maher, 645 F.2d 780, 782 (9th Cir. 1981) (per curiam) (Pranks applies to allegedly material omissions; sub Silentio); see also United States vy. Willis, 647 F.2d 54, 58-59 (9th Cir. 1981). Here, the failure to disclose Poster's exculpatory statement was not prejudicial. The affidavit links Foster to a heroin sale that occurred on February 26, 1981. Thus even had the magistrate known of Foster's statement, he could reasonably have determined that there was probable cause to search Foster's residence in May 1981. B. Gibson Gibson attacks the warrant as lacking in information to establish probable cause and as “stale”. We disagree. Five informants identified Gibson as a ‘Lieutenant in Foster's organization. William's affidavit details three sales by Gibson and two others in which a car registered to Gibson was used. Although the most recent sale in which Gibson i A-23. himself participated occurred in May 1980, business records showed that Gibson had rented a beeper like those used in organization and had made pay- ments on it through March 1981. When considered together with William's opinion that evidence of Gibson's drug dealings, including drug paraphernalia, would be found at Gibson's residence, this information is sufficient to uphold the trial court's determination of probable cause. See United States v. Dubrofsky, 581 F.2d at 213 (warrant may be upheld when the nexus between the items to be seized and the place to be searched rests upon the type of crime, nature of the items, and usual inferences where a criminal would likely hide contraband). A-24. Gibson urges, however, that no fac- tual allegations in the affidavit link him to the Oak Park residence. The affidavit concludes, in summary fashion, that the address is Gibson's. But the affidavit also states that the San Diego Gas & Electric Company suscriber at the address is Gibson's wife, Lera lL. Gibson. The magistrate need not be convinced beyond a reasonable doubt that the facts in an affidavit are true. We find that the magistrate properly relied on the gas company records as justifying an inference that Gibson resided there because his wife did. Finally, Gibson's challenge to the warrant on grounds of “staleness" is without merit. The affidavit disclosed that Gibson had made a payment on the rented beeper in March 1981, two months before the search warrant was executed. Much of what we have said concerning Foster's "“"staleness" argument applies with equal force here. The continuing nature of the drug dealing organization fully justified a search of Gibson's residence for evidence of such dealing. III. ALLEGED PROSECUTORIAL MISCONDUCT BEFORE THE GRAND JURY Foster argues that prosecutorial misconduct before the grand jury consti- tuted an impermissible infringement on the exercise of the grand jury's inde- pendent judgment. Foster cites six incidents of alleged misconduct, which, he urges, together required dismissal of the indictment. A-26 . The record does not demonstrate such misconduct. Foster did not designate as part of the record on appeal portions of the grand jury proceeding transcripts on which he relies. Foster has therefore failed in his burden of establishing error “not by assertion, but by the record." L & E Co. yv. U.S.A. ex rel. Kaiser Gypsum Co., 351 F.2d 880, 883 (9th Cir. 1965). IV. ADMISSIBILITY OF COCONSPIRATOR HEARSAY STATEMENTS Foster and Gibson contend that the district court erred in admitting cer- tain extrajudicial statements offered by the government under the coconspirator exception to the federal rules of evi- dence. See Fed. R. Evid. 801(d)(2)(E). A-27. The appellants urge that the statements failed to meet the foundational require- ments of Rule 801(d)(2)(E) and that admission of the statements violated their rights under the confrontation clause. A. Foster Over Foster's objection, Agent Ashcraft testified concerning statements made by defendant Jackson on two occa- sions. The first statement occurred during a heroin sale to Callier. Jackson told Callier that "Greg" (Foster) had quit selling drugs; that Foster's lieutenants had no drugs; and that Foster was scared over the arrest of other conspirators. In the second Statement, Jackson told Gentry that "Greg" had stopped selling heroin A-28. because someone had taken a large sack of money from him. Jackson also related that Foster planned to renew selling heroin as soon as he recovered the money. It was error to admit these state- ments. Hearsay statements are admis- sible under the coconspirator exception only if made in "furtherance of the conspiracy.” Fed. R. Evid. 801(1) (2) (E); United States v. Perez, 658 F.2d 654, 658 (9th Cir. 1981). Both state- ments by Jackson were mere narrative declarations insufficient to satisfy the Strict requirements of the rule. See United States v. Fielding, 645 F.2d 719, 726 (9th Cir. 1981). We do not agree with the government that the statement to Gentry must be construed as an attempt by Jackson to A-29 . nurture Gentry's continued interest in the organization by predicting that Foster would soon be selling heroin again. Unless the declarant is * 'seek- ing to induce [the listener] to deal with the conspirators or in any other way to cooperate or assist in achieving the conspirators’ common objective,'" the declaration is inadmissible. Id., quoting United States v. Moore, 522 F.2d 1068, 1077 (9th Cir. 1975), cert. denied, 423 U.S. 1049 (1976). State- ments concerning activities of the con- spiracy, including future plans, also are not admissible unless made with such intent. Id. No intent to elicit coop- eration or assistance in achieving the common scheme is evident from the state- ments. 2/ A-30. The improper admission of Jackson's Statements under Rule 801(d)(2)(E) was not, in this case error of constitu- tional dimension. See United States v. Castillo, 615 F.2d 878, 883 (9th Cir. 1980). Therefore, reversal is required only if it is more probable than not that the error materially affected the verdict. United States v. Rasheed, 663 F.2d 843, 850 (9th Cir. 1981), cert. denied, 454 U.S. 1157 (1982) United States v. Valle-Valdez, 554 F.2d 91l, 916 (9th Cir. 1977). We are satisfied that the error was harmless. Almost every witness implicated Foster, and the evidence against him was overwhelming. Foster also contends that his Sixth Amendment confrontation right was vio- lated by admission of Jackson's state- ments. 4/ We disagree. Confrontation claims are _ reviewed under a two-track approach that tests the necessity and reliability of the challenged testimony. Ohio v. Roberts, 448 U.S. 56, 65-66 (1980). Concerning the necessity requirement, the prosecu- tion must either produce or demonstrate the unavailability of the declarant whose statement it intends to offer against the defendant. Id. at 65. The Supreme Court has suggested, however, that complience with this requirement might not be mandatory when the testi- mony is neither “crucial” to the prose- cution nor “devastating” to the defen- dant. Dutton v. Evans, 400 U.S. 74, 87, 89 (1970). Although Foster contends that Jackson's hearsay statements were both "crucial" and "devastating", he concedes that Jackson was unavailable within the meaning of the Sixth Amendment. Accord- ingly, even if Jackson's statement is viewed as “crucial” and “devastating,” the rule of necessity inherent in the confrontation clause can not be said to have violated in Foster's case. The reliability of a coconspirator's statements are tested under four indicia: (1) whether the declaration contained assertions of past fact; (2) whether the declarant had personal know- ledge of the identity and role of the participants in the crime; (3) whether it was possible that the declarant was relying upon faulty recollection; and (4) whether the circumstances’ under which the statements were made provided reason to believe that the declarant had misrepresented the defendant's involve- ment in the crime. Dutton v. Evans, 400 U.S. at 88-89; United States v. Perez, 658 F.2d at 661. Foster challenges the admissibility of Jackson's hearsay statements only on the basis of factors (1) and (4). Although some of the statements made by Jackson referred to Foster's having previously quit the dru@ selling busi- ness, their introduction into evidence did not amount to a constitutional vio- lation. All four Dutton elements need not be present for the proper admission of hearsay statements over a confronta- tion clause objection. Id. Moreover, there was little risk that the jury would give undue weight to such state- ments of past fact. See Dutton, 400 U.S. at 88. Evidence that Foster had quit A-34. selling heroin could only have assisted his defense. Foster urges that Jackson's state- ments to Callier included references to Poster only beceuse Callier “errone- ously" believed that Foster was Jackson's supplier, and Jackson hoped to stall Callier until he could find a supply of heroin to sell Callier. How- ever, because Jackson believed Callier to be a potential customer, not a gov- ernment agent, Jackson would have had little apparent motive to falsify Foster's role in the crime. See United States v. Snow, 521 F.2d 730, 735 (9th Cir. 1975), cert. denied, 423 U.S. 1090 (1976). B. Gibson Boyles testified that Sears told her that Sears’ source of heroin was A-35. "Johnnie Blue” (Gibson). Gibson chal- lenges Boyle's testimony as_ incred- ible. °>/ Credibility determinations, however, are matters for the jury. See United States v. Brady, 579 F.2d 1121, 1127 (9th Cir. 1978), cert. denied, 439 U.S. 1074 (1979). Gibson also contends that Sears' statement was “crucial” to the prosecu- tion and “devastating” to his defense. Because Gibson did not preserve this issue by a proper objection at trial, we review the issue under the plain error doctrine. See note 5, supra. Gibson emphasizes that Sears' state- ment was highly incriminating. Even so, the prosecution's failure to produce the seemingly available witness did not render admission of the statement erro- neous. The confrontation clause's rule A-36. of necessity is not absolute, and production of the declarant/witness is not required when the “utility of trial confrontation [is] remote." Ohio ¥v. Roberts, 448 U.S. at 65 n.?7. In this case, Boyles also testified that she had herself purchased heroin from “Johnnie Blue.” Any cross-examiation of Sears regarding his statement would, there- fore, have served little purpose. We find no error in the trial court's admitting Boyle's testimony, Vv. ADMISSIBILITY OF THE LEDGER Over Gibson's objection, Logan's ledger was admitted into evidence under the business record exception of Fed. R. Evid. 803(6). The ledger, which con- tained records of drug transactions, A~3?7. implicated Gibson in the conspiracy. Gibson contends that the ledger was improperly admitted because the records were not kept in the course of regularly conducted business activity and because the entries were untrustworthy. ©/ To be admissible as a business record under Rule 803(6), the record must have been kept in th® “regular course” of a business activity. Clark v. City of Los Angeles, 650 F.2d 1033, 1036 (9th Cir. 1981), cert. denied, 456 U.S. 927 (1982). A record is considered as having been kept in the regular course of business when it is made pursuant to established procedures for the routine and timely making and preserving of business records, and is relied upon by the business in the performance of its functions. Id. at 1037. Logan testified that she kept a record of most of her large drug trans- actions. She stated that it was her regular practice to enter into the led- ger the number of balloons that went out on a particular day and how much money she took in. The transactions were recorded contemporaneously, and Logan relied on them. This evidence was suf- ficient to satisfy Rule 803(6). The fact that the ledger was an incomplete record of Gibson's drug deal- ings and contained several blank pages and unrelated entries did not render the ledger inadmissible. The accuracy of the remaining pages was not altered simply because Logan did not record every heroin sale that occurred. See United States vy. Baxter, 492 F.2d 150, A-39. 165 (9th Cir. 1973), cert. denied, 416 U.S. 940 (1974). Nor does the fact that the entries were made out of sequence destroy their accuracy. The entries were made at or near the time of the events described and they satisfied the regularity requirement. Their sequence was there- fore irrelevant. United States v. McPartlin, 595 F.2d 1321, 1348 (7th Cir.), cert. denied, 444 U.S. 833 (1979). Gibson argues that the entries were nonetheless untrustworthy. However, because Logan had to rely on the entries, there would have been little reason for her to distort or falsify them. See id. at 1347. A-40 . vi. ALLEGED PROSECUTORIAL MISCONDUCT IN CLOSING ARGUMENT During closing argument, the prosecu- tor reminded the jury that Agent Ashcraft had testified that one of the defendants had given the government information to support a warrant for the search of Logan's residence. He argued that none of the defense counsel had inquired of Ashcraft whether it was his client who had provided the information. The prosecutor then suggested that the defendants were “hanging together" to conceal their guilt, as they had throughout the conspiracy, and that defense counsel were acting in support of that goal. Foster's counsel objected to this line of argument. A-41. The prosecutor may well have exceeded the wide latitude permitted counsel in closing argument. See United States v. Parker, 549 F.2d 1217, 1222 (9th Cir.), cert. denied, 430 U.S. 971 (1977). The next morning, however, defense counsel agreed to the prosecutor's offer to correct any misconception. The prosecu- tor then told the jury that he was referring to the defendants only and did not mean to imply that defense counsel were part of a conspiracy. Improprieties in counsel's arguments to the jury do not constitute reversible error “unless they are so gross as prob- ably to prejudice the defendant, and the prejudice has not been neutralized by the trial judge.” Id. In this case, the trial court left it to defense coun- sel to decide whether the prosecutor A-42. should correct his statement. If any prejudice to Foster resulted from the prosecutor's argument, it was neutral- ized by counsel's corrective statement. vir. ALLEN CHARGE The jury acquitted defendant Henderson on the fourth day of deliber- ations. On the afternoon of the fifth day, the trial judge received a note requesting that one of the jurors be released because of the strain on the individual's family and job. After discussing the matter with counsel, the judge responded with a note asking the jury to continue its deliberations. Later that afternoon the court received a second note: "Another juror wants to be released. We seem to be at A-43. ° a standoff, and she feels that there is no clear end in sight." The judge informed counsel that he was considering giving the jury a modified version of the Allen charge, prompting defense counsel to move for a mistrial. The jury was then summoned, and the foreperson indicated that no other ver- dict had been reached. The judge reminded the jurors of the importance of the case and thanked them for their work. At the judge's suggestion the jury retired to consider whether it would like a day off to address the concerns expressed in the notes. When the jury returned the foreperson stated that the majority of the jurors wished to return the next day, but that a few members thought that “discussions [were] A-44. hopelessly deadlocked and no _ further progress [could] be made." The court then gave the modified Allen charge’/ and excused the jury for the day . 8/ Three days later an eleven- person jury returned with verdicts as to Foster, Jackson, and Gibson. See discus- sion infra. In reviewing the propriety of an Allen charge, the court must examine the instruction in its context and under all the circumstances to determine whether it had a coercive effect. United States v. Hooten, 662 F.2d 628, 636 (9th Cir. 1981), cert. denied, 455 U.S. 1004 (1982). This circuit evaluates coer- civeness on the basis of (1) the form of the instruction; (2) the period of deliberation following the Allen charge; (3) the total time of jury A-45. deliberations; and (4) the indicia of coerciveness or pressure upon the jury. United States v. Beattie, 613 F.2d 762, 765-66 (9th Cir.), cert. denied, 446 U.S. 982 (1980). Relying on factors (3) and (4), Foster, Jackson, and Gibson contend that the Allen charge had a coercive effect on the jury. They emphasize that nearly all of the government's case rested on the testimony of informants, and that the charge came after two jurors had indicated their desire to be relieved of duty. The total time of juror deliberation is relevant as to the coercive effect that an Allen charge may have had in relation to the difficulty of the task before the jury. See United States v. Moore, 653 F.2d 384, 390 (9th Cir. A-46. 1981). Trial in this case lasted eight and one-half days; verdicts as _ to Foster, Jackson, and Gibson were ren- dered on the eighth day of delibera- tions. During those eight days, the jury considered numerous counts against eight defendants charged in a sophisti- cated drug-selling operation. In these circumstances, we cannot conclude that the Allen charge "“coercively produced the result." United States v. Beattie, 613 F.2d at 766. The appellants' emphasis on the nature of the government's proof is unavailing. The length of the delibera- tions can also be viewed as reflecting a proper circumspection by jurors who had to consider the credibility of several, paid government informants with criminal records. A-47. Finally, we find nothing in the record indicating an indicia of coerciveness or pressure upon- the jury. First, the jury in this case rendered discriminating verdicts, acquitting three codefendants after the judge read the Allen charge. This fact Significantly weakens the appellant's argument that the jury was coerced by the Allen charge. Second, although the jury had twice indicated that they were deadlocked, the record does not reveal that either the jury or the judge had expressed "a sense of frustration at the jury's failure to reach a_ verdict." Moore, 653 F.2d at 390; cf. id. (Allen charge properly given after trial judge had received two notes indicating that jurors were deadlocked). Moreover, because the trial judge in this case was unaware of how the jury stood, there was no danger that the Allen charge would "suggest to the minority position jurors that [the judge) was speaking directly to them," Beattie, 613 F.2d at 766. We conclude that the trial judge did not abuse his discretion in giving the Allen charge. Id. VIII. RULE 24(c) WAIVER During the settling of instructions, the trial court suggested that’ the parties stipulate to a waiver of Fed. R. Crim. P. 24(c). The judge expressed his concern that the trial had been lengthy and outlined his proposal for the sub- stitution of any juror determined to be unable to continue: "Retain the alter- nates, maintain the confidentiality, use A-49 . {an alternate] if good cause appears {and] insert [the alternate] in the jury room if the need arises." On the last day of trial, defense counsel agreed to the stipulation prepared by the judge, with the modifi- cation that only the first two alter- nates be retained. All defendants and their counsel signed the _ stipulation without further discussion or objection. During the sixth day of jury deliber- ations, the court received a third note from the jury (see part VII, supra). The foreperson informed the judge that a juror was encountering marital and busi- ness problems and wished to be released. The note indicated, however, that the rest of the jury was still deliberating and that the court should not infer that A-50 . the reluctant juror was holding out one way or the other. In the presence of all counsel, juror Perez was examined in chambers. There- after the court stated its intention to dismiss the juror for good cause. After denying counsels‘ motion for a mistrial, the court asked counsel for suggestions, referring to the Rule 24(c) waiver. Counsel for Foster initially indica- ted that he wished to continue with an eleven-member jury. But when counsel for defendant Norman indicated that upon rereading Rule 24(c) he did not think the rule could be waived, counsel for Foster stated that when he agreed to waive Rule 24(c), he could not have envisioned the unusual turn of events that had occurred. A-51. The court responded that unless the parties unanimously agreed to the pro- posal for an eleven-person jury, he would hold them to the _ stipulation. Wilson stated that he preferred to pro- ceed with the alternate, but each of the remaining defendants personally waived his right to a twelve-person jury. See Fed. R. Crim. P. 23(b). The court then excused juror Perez. The next day the parties agreed that because only Wilson wished to proceed with the alternate juror, the jury should be instructed, before the alter- nate was seated, that it should not consider Wilson's case until it had finished deliberations on the remaining defendants. The alternate would then be seated and the jurors would begin delib- eration anew on the counts against A-52. Wilson. Wilson agreed to this proposal in open court, and the jurors were instructed accordingly. The jury returned verdicts on Foster, Jackson and Gibson on the afternoon of the eighth day of deliberations. The alternate was installed the next day, and the court instructed the jury to begin deliberations anew. Wilson was found guilty on the tenth day of delib- erations. Fed. R. Crim. P. 24(c) provides in part that alternate jurors "shall replace jurors who, prior to the time the jury retires to consider its ver- dict, become or are found to be unable or disqualified to perform their duties. ... An alternate juror who does not replace a regular juror shall be discharged after the jury retires to A-53. consider its verdict." This court has held that the provisions of the rule may be waived by stipulation. Leser v. United States, 358 F.2d 313, 317-318 (9th Cir.), cert. dismissed, 385 U.S. 802 (1966). In this case, the appellants uncon- ditionally waived the discharging of the first two alternate jurors and stipu- lated that, for good cause, an alternate could. be substituted after deliberations had begun. Each appellant and his coun- sel signed the written stipulation with- out objection. The appellants do not contend that their waivers were unintel- ligent. Thus we are loath to find that the Rule 24(c) waivers were ineffective. The appellants urge that the trial judge coerced them into making the stip- ulation. See Leser, 358 F.2d at 317. A-54 . The record, however, belies any such interpretation of the circumstances. Admittedly, the judge suggested the idea of the waiver and prepared the stipulation. Appellants aand_ their counsel, however, fully acquiesced in the waiver, insisting on the retention of only the first two alternates. The appellants also contend that the dramatic turn of events -- the rendering of a partial verdict, the notes from jurors seeking release, indications that the jury was deadlocked, and the giving of an Allen charge on the fifth day of deliberations?’ -- required that’ the court relieve them from the stipulation. In support of their argument, they cite this court's decision in United States v. Lamb, 529 F.2d 1153 (9th Cir. 1975) (en banc). A-55. In Lamb, the court held that the trial court's failure to follow the mandatory requirements of Rule 24(c) mandated a reversal of the appellant's conviction in the circumstances. Id. at 1156-1157. Although Lamb did not involve an express waiver, the court stated in dicta that even had there been such waiver .it would not have remained effective due to the “dramatic change in circumstances" that had occurred after the jury first begain to deliberate. Id. at 1157,10/ We are not persuaded that the dicta in Lamb should be applied in this case. As we have indicated, the original Rule 24(c) waiver was valid as to each appellant. Upon dismissal of the regu- lar juror, the court accommodated defense counsels' request that six of A-56. the defendants be permitted to proceed with eleven jurors. The court carefully instructed the jury as to their obliga- tions concerning these deliberations. Similarly, the court followed the literal wording of the Rule 24(c) Stipulation when it instructed’ the newly-constituted jury to begin deliber- ations anew as to Wilson. In these circumstances, we decline to presume that the jury failed to follow the court's instructions. }1/ Finally, the appellants have not established that they suffered any prej- udice from the trial court's resolution of the substitute juror problem. Indeed, on his record such a _ showing presents a difficult task. Those appel- lants who chose to proceed with eleven jurors validly waived the provisions of A-57 . both Rules 24(c) and 23(b). By his choice to have the alternate participate in the deliberation of his case, Wilson agreed to a permissible Rule 24(c) waiver twice. We conclude that the triak court did not err in refusing to grant the appellant's motion for a mis- trial. 12/ Ix NEW TRIAL MOTION Six days after the jury returned its verdict against him, Wilson filed a motion for a new trial pursuant to Fed. R. Crim. P. 33. The trial court denied the motion on the ground that Wilson had failed to satisfy the requirements for granting a new trial set forth in United States v. Brashier, 548 F.2d 1315, 1327 (9th Cir. 1976). A-58 . Wilson argues that the court should not have applied the Brashier standard in evaluating his motion, but rather should have assessed his request under a rule that favors granting new trial motions based on newly discovered evidence if the request is made within seven days of the verdict and if it is in the interest of justice to do so. See 3 C. Wright, Federal Practice and Procedure § 557 (1982). We need not express any opinion on such a standard because Wilson did not argue this theory in the trial court. Wilson instead attempted to fit his motion within the Brashier guidelines. He does not chal- lenge the trial court's denial of the motion under Brashier, and we decline to review his argument raised for the first time on appeal. See Collins v. A-59 . Thompson, 679 F.2d 168, 171 (9th Cir. 1982). All appellants' convictions on all counts are AFFIRMED. A-60 . FOOTNOTES 1/ No identification was made of the person or persons within Gibson's car. 2/ 154 calls were the maximum number of calls allowed without incurring addi- tional charges. In October 1979 Wilson received 359 calls. In December 1979 he received 261 calls. 3/ Such intent is evident, however, in a series of conversations between Callier and Hamilton, Davis and Turner, in which they referred to Foster as the head of the organization and as a sup- plier of heroin. Callier had approached these individuals claiming that he was having difficulty getting a steady sup- ply of heroin and was willing to sell in the downtown area where Foster allegedly needed a distributor. The references to Foster were aimed at meeting Callier's purported need and were therefore made to induce Callier to join the conspir- acy. 4/ It is unclear from the_- record whether Foster preserved this issue by a proper objection at trial. Following the Government's opening statement, at which the prosecutor read the entire Jackson/Callier conversation to’ the jury, Foster moved for a mistrial, rais- ing the confrontation issue. During the government's case-in-chief, Foster again vaguely alluded to the confrontation problem that Agent Ashcraft's testimony would present. Foster also raised A-61. several, more specific objections; all were overruled. The record does not establish, however, whether the trial judge intended to overrule a confrontation objection. Even if the record does not establish a proper objection at trial, we review the issue under the plain error doc- trine. See United States v. Traylor, 656 F.2d 1326, 1333 (9th Cir. 1981). 5/ Gibson's contention based on the admissibility of statements under Fed. R. Evid. 801(d)(2)(E) relates only to the Jackson/Callier conversation described above. Gibson was never men- tioned by Jackson in these statements. Thus there is no basis for Gibson's challenge that the trial court violated Rule 801(d) (2) (E). 6/ This court has held that the running accounts of illicit enterprises are "business records," subject to the ordi- nary requirements regarding the admissi- bility of writings. See United States v. Baxter, 492 F.2d 150, 165 (9th Cir. 1973), cert. denied, 416 U.S. 940 (1974); Arena v. United States, 226 F.2d 227, 234-35 (9th Cir. 1955), cert. denied, 350 U.S. 954 (1956). 1/ The judge instructed the jury as follows: Ladies and Gentlemen, I am going to ask that you resume your deliberations for a further period of time in an attempt to return a verdict. As I have told A-62. you, each of you must agree in order to return a verdict. You have the duty to consult with one another and to deliberate with a view of reaching an agreement if this can be done without violence to individual judgment. Each juror must decide the case for himself or herself, but only after impartial consideration of the evidence with his or her fellow jurors. During the course of your deliberations, each of you should not hesitate to reex- amine your own views and change your opinion if convinced it is erroneous. No juror, however, should surrender his or her honest conviction as to the weight and effect of evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a ver- dict. 8/ We agree with the trial judge that his earlier remarks about the importance of the case did not constitute an Allen charge. The judge told the jury that the case was very important for the government and for each defendant. He added that it was extremely important that "if the matter [can] be resolved under the instructions of the court, that it be resolved.” These remarks did not approach an instruction "admonishing {the] jurors to reconsider their posi- tion," United States v. Beattie, 613 F.2d 762, 765 (9th Cir.), cert. denied, A-63. 446 U.S. 982 (1980). We therefore reject the appellants' contention that the trial court gave two Allen instruc- tions, triggering this circuit's rule of per se reversal in such circumstances.” See United States v. Seawell, 550 F.2d 1159, 1163 (9th Cir. 1977), cert. denied, 439 U.S. 991 (1978). 9/ As indicated above the trial judge was within his discretion in giving the Allen charge. 10/ In Lamb, the trial judge discharged an alternate juror but instructed her to stand by in case she were needed. During the course of the jury's deliber- ations, the judge received a note from a juror asking to be excused. The judge then called the alternate and asked her to return. Subsequently, the judge was informed that a verdict had _ been reached. He called the alternate again and told her not to return. The judge refused to accept’ the verdict, however, because it was incon- sistent with the instructions. He then questioned and excused the juror who had written the note. Over defense counsel's objection, the alternate was recalled and joined the jury, which was instructed to begin deliberations anew. The jury returned with a quilty verdict twenty-nine minutes later. 529 F.2d at 1154-55. A-64. 11/ As it had done with the regular jurors, the court admonished the _ two retained alternates to maintain’ the confidentiality of the proceedings. 12/ It should be noted that the Supreme Court has approved changes in the crim- inal rules which would permit the dis- trict court to excuse a juror and obtain a verdict from 1l jurors without a stipulation. 51 U.S.L.W. 4501, 450 (U.S. May 3, 1983). A-65. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1433%3A1. Public record. Not legal advice.