The White Collar Appeal: Ninth Circuit Vacates Conviction After Holdout Juror Replaced During Deliberations

• In United States v. Le, the Ninth Circuit vacated a conviction because the district court replaced a deliberating juror who expressed extreme distress—including thoughts of self-harm—“based on pressure from other jurors to reach a specific verdict.”  The district court’s options were either to send the juror back to continue deliberating or to declare a mistrial—not to seat an alternate.
• The Ninth Circuit reached this decision notwithstanding that (1) it applied plain-error review and (2) the defendant affirmatively consented to excusing the juror at trial.  But waiver could not bar vacatur here because the Sixth Amendment right to a unanimous verdict cannot be waived.
• The lesson of Le is that district courts should not excuse a juror even for an otherwise legitimate reason (such as mental distress) where the underlying source relates to disagreement among the jury about the verdict.  Defense counsel facing these situations should keep that in mind as they build a record in the trial court.

Background

Le was a murder case.  The defendants took the victim out on a boat ostensibly for lobster fishing, but only the defendants came back on the boat.  The victim’s body later turned up floating in the ocean with gunshot wounds and blunt force trauma to the head.  The trial focused on (1) whether the killing was premeditated or the product of self-defense and (2) whether the death occurred within the special maritime and territorial jurisdiction of the United States.

After a 12-day trial and more than three full days of deliberations, the foreperson informed the trial judge that one juror, BJR, was unable to “make a decision” and wanted to be excused, but that the others wished to continue deliberating “with an alternate if necessary.”  The parties and the court jointly drafted questions designed to identify the source of BJR’s distress without revealing the status of deliberations, and BJR confirmed that her worsening mental health was “based on pressure from other jurors to reach a specific verdict.”  The court did not inquire further about BJR’s ability to reach a decision for fear of invading the jury’s deliberations, which are off-limits even to the court under Rule 606(b) of the Federal Rules of Evidence.

The court initially declined to excuse her and sent the jury back to continue deliberating.  But the foreperson quickly returned to report that BJR had expressed thoughts of self-harm in order to be removed from the process, and that the jurors were concerned that “her vote does not represent the result of a complete and comprehensive deliberation.”  BJR confirmed that she could not continue, the parties agreed to excuse her, and an alternate was seated.  In less than a full day, the reconstituted jury convicted Le on all counts, and the district court sentenced him to life imprisonment.

Holding

The Ninth Circuit vacated Le’s convictions.  Excusing a juror—even one suffering from mental distress—violates the Sixth Amendment right to a unanimous verdict where the juror’s desire to be excused derives from pressure to render a verdict with which the juror does not agree.  In this circumstance, “the trial judge has only two options: send the jury back to continue deliberating or declare a mistrial,” and dismissal is proper only if the evidence is “sufficient to leave one firmly convinced” that the impetus was unrelated to the juror’s position on the merits.

Here, BJR’s own answer showed “a causal connection between the jury pressure and BJR’s mental health deterioration.”  Other evidence in the record was consistent with that conclusion:  more than three full days of deliberations, a foreperson focused on BJR’s “vote,” jurors who wanted BJR replaced, and a district court that acknowledged she may have been “a holdout juror.”  As a result, Le was entitled to a retrial.

The Ninth Circuit reached this conclusion notwithstanding that it determined that Le had consented to the replacement of BJR at trial.  The government, for its part, argued that this amounted to waiver and that Le could not assert any argument on appeal regarding the replacement.  But the Ninth Circuit declined to find waiver, relying on precedent holding that a defendant may not waive the unanimity requirement, regardless of whether the waiver was voluntary.  Citing a 1978 decision written by then-Judge Anthony M. Kennedy, the Le Court explained that “[a]llowing waiver … would erode the structural safeguards baked into the deliberative process regardless of the individual defendant’s consent[, which] is not purely personal but is shared with society at large.”

Key Takeaways

Note the distinction between a juror’s view of the evidence and her view of the law.  Le distinguished United States v. Wilkerson, 966 F.3d 828 (D.C. Cir. 2020), in which the district court replaced a juror during deliberations after the juror claimed distress due to a fundamental opposition to the “laws and instructions” the court had given.  The D.C. Circuit affirmed in Wilkerson because there the juror’s request for dismissal stemmed from her disagreement with the law itself, an independently valid ground that bore no causal link to her holdout status on the evidence.  The upshot is that a juror who doubts that the evidence proves the defendant violated the law is a protected holdout, but a juror who disagrees with the law itself can be removed.

Defense counsel should seek to tie a juror’s excusal to a disagreement about the evidence.  Mental or emotional distress, opposition to the law, and other factors can supply a legitimate independent reason to replace a juror even where the juror also is a holdout on the question of guilt.  But where, as in Le, the independent basis was a result of a disagreement about the evidence, replacing the juror was improper.  The outcome in Le is similar to United States v. Laffitte, 121 F.4th 472 (4th Cir. 2024), in which the Fourth Circuit vacated a conviction where the district court replaced a juror who was experiencing mental distress due to “her views of the case” and her “holdout status.”  In light of Le and Laffitte, defense counsel thus should do whatever possible to link the proffered independent basis to coercion of an evidentiary holdout. 

Object and move for a mistrial.  The right to a unanimous verdict cannot be waived, but plain-error review has doomed more than a few otherwise meritorious appeals.  Le won here, but defendants still should object and otherwise preserve de novo review for any kind of jury composition issue. 

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United States v. Le, No. 23-1814 (9th Cir. Oct. 15, 2026)