United States v. Johnson

1
22-1289
United States v. Johnson
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 14 th day of July, two thousand twenty-five.
Present:
DEBRA ANN LIVINGSTON,
Chief Judge,
RAYMOND J. LOHIER, JR.,
RICHARD J. SULLIVAN,
JOSEPH F. BIANCO,
MICHAEL H. PARK,
WILLIAM J. NARDINI,
STEVEN J. MENASHI,
EUNICE C. LEE,
BETH ROBINSON,
MYRNA PÉREZ,
ALISON J. NATHAN,
SARAH A. L. MERRIAM,
MARIA A. KAHN,
Circuit Judges.
_____________________________________
UNITED STATES OF AMERICA,
Appellee,
v. 22-1289
RICKEY JOHNSON, AKA SEALED

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DEFENDANT 1, AKA NEIL DAWN
DEFARREN,
Defendant-Appellant.
_____________________________________
For Appellee: KYLE A. WIRSHBA, Assistant United States
Attorney (Patrick R. Moroney, Stephen J.
Ritchin, Assistant United States Attorneys,
on the brief), for Damian Williams, United
States Attorney for the Southern District of
New York, New York, NY.
For Defendant-Appellant: C OLLEEN P. C ASSIDY , Federal Defenders of
New York, New York, NY.
Following disposition of this appeal on September 6, 2024, an active judge
of the Court requested a poll on whether to rehear the case en banc. A poll having
been conducted and there being no majority favoring en banc review, the petition
for rehearing en banc is hereby DENIED.
Raymond J. Lohier, Jr., Circuit Judge, joined by Joseph F. Bianco, Circuit
Judge, and joined as to Parts I and II by Maria A. Kahn, Circuit Judge, concurs by
opinion in the denial of rehearing en banc, and is joined as to Part I by Eunice C.
Lee, Beth Robinson, Myrna Pérez, and Alison J. Nathan, Circuit Judges.
Steven J. Menashi, Circuit Judge, joined by Debra A. Livingston, Chief Judge,
Richard J. Sullivan, and Michael H. Park, Circuit Judges, concurs by opinion in the
denial of rehearing en banc.
Sarah A. L. Merriam, Circuit Judge, joined by Eunice C. Lee, Beth Robinson,
Myrna Pérez, and Alison J. Nathan, Circuit Judges, dissents by opinion from the
denial of rehearing en banc.

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Denny Chin, Circuit Judge, filed a statement with respect to the denial of
rehearing en banc.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk

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22-1289
United States v. Johnson
1
LOHIER , Circuit Judge, joined by B IANCO, Circuit Judge, and joined as to Parts I and
II by KAHN, Circuit Judge, concurring in the denial of rehearing in banc, and
joined as to Part I by LEE , ROBINSON, PÉREZ , and N ATHAN, Circuit Judges:
I
We are not all in agreement as to whether in banc review of this matter is
warranted. But it is not uncommon in a collaborative court for members of the
court to join various portions of other colleagues’ opinions. Here, eight members
of this Court — Judges Bianco, Lee, Robinson, Pérez, Nathan, Merriam, Kahn,
and I — agree that the question of whether a structural error must implicate a
defendant’s constitutional rights remains an open one in this Circuit because the
panel opinion’s statements bearing on a hypothetical structural error that is non-
constitutional are clearly dicta. Accord Merriam, J., Dissenting Op. at 6.
II
That said, I agree that we should deny rehearing in banc in this unusual
case. This case squarely raises one basic issue: whether a violation of Federal
Rule of Criminal Procedure 23(b), which requires a twelve-person jury in a
federal criminal trial, affects a defendant’s constitutional or substantial rights.
This question, in my view, has already been answered by our Court and the

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22-1289
United States v. Johnson
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Supreme Court. In Williams v. Florida, 399 U.S. 78 (1970), the Supreme Court held
that the Sixth Amendment right to a jury trial does not mandate precisely twelve
jurors. Following Williams, we held that the denial of a twelve-person jury does
not “impair the ‘substantial rights’ of a criminal defendant.” See United States v.
Stratton, 779 F.2d 820, 833–34 (2d Cir. 1985).
Good arguments may well exist for revisiting Williams (and, by extension,
our decision in Stratton). See Khorrami v. Arizona, 143 S. Ct. 22, 23–27 (2022)
(Gorsuch, J., dissenting from denial of certiorari); Cunningham v. Florida, 144 S.
Ct. 1287, 1287–88 (2024) (Gorsuch, J., dissenting from denial of certiorari); United
States v. Johnson, 117 F.4th 28, 60–61 (2d Cir. 2024) (Chin, J., dissenting). But we
“should . . . leav[e] to [the Supreme] Court the prerogative of overruling its own
decisions.” Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484
(1989). So we remain bound by Williams unless and until the Supreme Court tells
us otherwise. For now, in light of Williams and Stratton, it appears that the denial
of the right to a twelve-person jury does not qualify as a structural error that
“defies analysis by harmless error standards.” See Weaver v. Massachusetts, 582
U.S. 286, 295 (2017) (cleaned up).

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22-1289
United States v. Johnson
3
III
The panel opinion suggests a second question lurking in the background:
whether structural errors must implicate a constitutional right. It says the
answer is yes, as a matter of first impression in our Circuit and contrary to the
conclusion reached by one of our sister Circuits. See United States v. Curbelo, 343
F.3d 273, 280, 285 (4th Cir. 2003). But the panel opinion reasons that the error in
this case is not structural because it did not affect even a substantial right.
Therefore, the opinion’s statements bearing on a hypothetical structural error
that is non-constitutional are clearly dicta. In other words, the panel opinion’s
assertion is decidedly not a holding of this Court.
Let me explain why. In holding that the Rule 23(b) violation here is subject
to harmless error analysis, the panel opinion concludes that the existence of
controlling precedent establishing that “the right to a twelve-member jury is
neither a constitutional nor even a substantial right . . . mean[s] that a violation of
Rule 23(b)’s twelve-member requirement cannot amount to a structural error.”
Johnson, 117 F.4th at 40 (emphasis added). The opinion’s discussion elsewhere
that a structural error must affect a defendant’s constitutional rights — as
opposed to “substantial rights” — is thus “unnecessary to the disposition of the

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22-1289
United States v. Johnson
4
case before it.”1 Hormel Foods Corp. v. Jim Henson Prods., Inc., 73 F.3d 497, 508 (2d
Cir. 1996); see Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 66–67 (1996) (“We
adhere . . . not to mere obiter dicta, but rather to . . . those portions of [an] opinion
necessary to [its] result . . . .”); Cotto v. Herbert, 331 F.3d 217, 250 n.20 (2d Cir.
2003) (“We have not hesitated to describe our prior statements as dicta when
they were not necessary to the holdings of the decisions in which they were
made.”). See generally Pierre N. Leval, Judging Under the Constitution: Dicta About
Dicta, 81 N.Y.U. L. Rev. 1249 (2006).
Of course, the “defining feature of a structural error . . . is that it affects the
framework within which the trial proceeds, rather than being simply an error in
the trial process itself.” United States v. Mendonca, 88 F.4th 144, 170–71 (2d Cir.
2023) (Lohier, J., concurring) (quoting Weaver, 582 U.S. at 295 (cleaned up)). That
framing suggests that the error need not affect a constitutional right. Cf. Weaver,
1 The panel opinion’s reasoning as to why the error here did not affect even a substantial
right is irrelevant to this inquiry. Because its disposition rests on that conclusion, its
additional observations on the nature of structural error are unnecessary to the result
and therefore dicta. Especially where, as here, a significant majority of active judges on
our Court agree on this basic point, a simple contrary pronouncement, see Menashi, J.,
Concurring Op. at 3, “cannot transmute dictum into” a holding. See United States v.
Rubin, 609 F.2d 51, 69 n.2 (2d Cir. 1979) (Friendly, J., concurring) (“A judge’s power to
bind is limited to the issue that is before him; he cannot transmute dictum into decision
by waving a wand and uttering the word ‘hold.’”).

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22-1289
United States v. Johnson
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582 U.S. at 295 (explaining that “[t]he precise reason why a particular error is not
amenable to [harmless error] analysis — and thus the precise reason why the
Court has deemed it structural — varies in a significant way from error to error,”
however those errors are labeled). Moreover, this Court has elsewhere signaled
that, in an appropriate case, a non-constitutional error involving a trial’s
framework might be found to be structural. See Shabazz v. United States, 923 F.3d
82, 84 (2d Cir. 2019) (“Categories of error found by the Supreme Court to be
‘structural’ ordinarily relate to ‘certain basic, constitutional guarantees that should
define the framework of any criminal trial.’” (emphasis added) (quoting Weaver,
582 U.S. at 295)). The panel opinion’s assertion to the contrary is, as Judge Chin
suggested in dissent, dicta built upon dicta. See Johnson, 117 F.4th at 59 (Chin, J.,
dissenting) (observing that “[t]he Supreme Court has never held that an error is
structural only if it affects a defendant’s constitutional rights”; it has only
“occasionally suggest[ed] in dicta that structural errors implicate constitutional
rights”).
For these reasons, as stated in Part I, the question of whether a structural
error must implicate a defendant’s constitutional rights remains an open one in
this Circuit. On that point, as also stated in Part I, we agree with our colleagues

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22-1289
United States v. Johnson
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who have dissented from the denial of rehearing in banc. See, e.g., Merriam, J.,
Dissenting Op. at 3 (“[W]hether a non-constitutional error can be structural is, at
a minimum, an open question.”). Whether a non-constitutional error can count
as a structural error is a question not squarely presented in this case, and any
attempt by our in banc Court to resolve the issue in a vacuum would itself count
as dicta. As the panel majority will not dispute, the only holding in its opinion is
that the rare trial defect at issue here is not structural because it impairs “neither
a constitutional [right]” under Williams “nor even a substantial right.” Johnson,
117 F.4th at 40.
IV
Because the opinion’s holding is limited to the very narrow issue of
whether a Rule 23(b) violation affects a defendant’s constitutional or substantial
rights, I concur in the denial of rehearing in banc.

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22-1289
United States v. Johnson
MENASHI , Circuit Judge, joined by LIVINGSTON, Chief Judge, and
S ULLIVAN and PARK, Circuit Judges, concurring in the denial of
rehearing en banc:
The court has voted against rehearing this case en banc. I concur
in its order because Johnson was correctly decided.
I
In Johnson, the court reached three holdings relevant here. First,
the court held that the right to a twelve-person jury is not a
constitutional right. See United States v. Johnson, 117 F.4th 28, 40 (2d
Cir. 2024). The Supreme Court has decided that “the fact that the jury
at common law was composed of precisely 12 is a historical accident,
unnecessary to effect the purposes of the jury system and wholly
without significance ‘except to mystics.’” Williams v. Florida, 399 U.S.
78, 102 (1970) (quoting Duncan v. Louisiana, 391 U.S. 145, 182 (1968)
(Harlan, J., dissenting)). Under current precedent, therefore, “there is
no constitutional right to a twelve-member jury.” Johnson, 117 F.4th at
40.
Second, the court held that a structural error must involve the
violation of a constitutional right. See id. at 40-41. The Federal Rules
of Criminal Procedure provide that “[a]ny error, defect, irregularity,
or variance that does not affect substantial rights must be
disregarded.” Fed. R. Crim. P. 52(a). “Rule 52 is, in every pertinent
respect, as binding as any statute duly enacted by Congress, and
federal courts have no more discretion to disregard the Rule’s
mandate than they do to disregard constitutional or statutory
provisions.” Bank of Nova Scotia v. United States, 487 U.S. 250, 255
(1988). Indeed, “a federal court may not invoke supervisory power to
circumvent the harmless-error inquiry.” Id. at 254. The Supreme

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Court has explained that we may deviate from the harmless-error
standard only for “a limited class of fundamental constitutional errors
that defy analysis by harmless error standards.” Neder v. United States,
527 U.S. 1, 7 (1999) (internal quotation marks omitted). “The purpose
of the structural error doctrine is to ensure insistence on certain basic,
constitutional guarantees that should define the framework of any
criminal trial.” Weaver v. Massachusetts, 582 U.S. 286, 294-95 (2017). A
right conferred only by the Federal Rules of Criminal Procedure
cannot create an exception to Rule 52(a). Accordingly, a structural
error must implicate a constitutional right that exists apart from the
rules.
Third, the court held that Johnson’s conviction by eleven jurors
was a harmless error. See Johnson, 117 F.4th at 43-44. Because (1) the
Constitution does not require a twelve-person jury and (2) structural
errors must be constitutional errors, Johnson’s conviction by eleven
jurors is subject to harmless-error review. See id. at 41. For the three
counts on which he was convicted, the evidence against Johnson was
overwhelming. “The conduct of the jury did not indicate that there
was significant disagreement” over those counts. Id. at 44.
Accordingly, while the district court erred in violation of Rule 23(b)
when it dismissed the twelfth juror before the jury started
deliberating, the error was harmless. See id.
II
Now that the en banc court has decided not to reconsider
Johnson, the dissent attempts to achieve such reconsideration by
labeling one of its key holdings as dicta that can be ignored in future
cases. The dissent claims that Johnson only “suggests that structural
error must be anchored in constitutional error.” Post at 5-6; see also ante
at 3.

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That is not what Johnson says. “I encourage readers to go to the
source, rather than rely on dissents, to understand what the Court
holds.” Bondi v. VanDerStok, 145 S. Ct. 857, 877 (2025) (Sotomayor, J.,
concurring). The Johnson opinion does not “suggest” but squarely
holds that the structural error doctrine is limited to a specific type of
constitutional error. It is difficult for a reader of the opinion to miss
this holding. See Johnson, 117 F.4th at 40 (“We depart from this
harmless-error analysis only for a limited class of fundamental
constitutional errors that defy analysis by harmless error standards.”)
(internal quotation marks omitted); id. at 41 (“The Supreme Court has
emphasized that the purpose of the structural error doctrine is to
ensure insistence on certain basic, constitutional guarantees that should
define the framework of any criminal trial.”) (internal quotation
marks omitted); id. (“[Structural] error requires automatic reversal
and is not subject to harmless error analysis because it involves a
deprivation of a constitutional protection so basic that in its absence,
a criminal trial cannot reliably serve its function.”) (internal quotation
marks omitted); id. (“Generally speaking structural errors must, at a
minimum, be constitutional errors.”) (alteration omitted) (quoting
United States v. Gonzalez-Huerta, 403 F.3d 727, 734 (10th Cir. 2005)); id.
at 42 (“[T]he Supreme Court and the appellate courts have repeatedly
made clear that structural errors necessarily must affect a defendant’s
constitutional rights.”) (internal quotation marks omitted); id. at 42
n.4 (“[S]tructural errors include only a limited class of fundamental
constitutional errors.”) (internal quotation marks omitted); id. at 43
(“[W]e must decline to recognize a new type of structural error that
does not affect a constitutional or even a substantial right.”).
A
The dissent describes this holding as “unnecessary to the
majority’s decision” and as “therefore dicta.” Post at 6 n.1. That is

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wrong. A dictum is “a comment on how the court would decide some
other, different case” and “does not explain why the court’s judgment
goes in favor of the winner.” Pierre N. Leval, Judging Under the
Constitution: Dicta About Dicta, 81 N.Y.U. L. Rev. 1249, 1256 (2006). A
holding, by contrast, announces and explains the judgment of the
court. See id. at 1256-57 & n.20. The holding includes the explanation
as well as the result. For that reason, “it is not only the result but also
those portions of the opinion necessary to that result by which we are
bound.” Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 67 (1996); see also
Cap. Currency Exch., N.V. v. Nat’l Westminster Bank PLC, 155 F.3d 603,
608 (2d Cir. 1998). We must “adhere … to the well-established
rationale upon which the Court based the results of its earlier
decisions.” Seminole Tribe, 517 U.S. at 66-67 (emphasis added).
The text and logic of Johnson require that structural errors be
limited to specific constitutional errors. The opinion held that “the
erroneous decision to proceed with eleven jurors does not warrant
vacatur” because “the error was harmless.” Johnson, 117 F.4th at 44.
The court reached that result based on the rule that only violations of
basic constitutional rights can generate structural errors:
In the absence of the deprivation of a constitutional right
so fundamental that the trial cannot be trusted to
perform its function, the Supreme Court has repeatedly
made clear that we must adhere to the general rule that
a constitutional error does not automatically require
reversal of a conviction. If the general rule applies to all
constitutional errors beyond a select few at the
constitutional bedrock, it necessarily applies to non-
constitutional errors that are even further removed from
that foundation. Because the right to twelve rather than
eleven jurors that Rule 23(b) provides does not implicate

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the Constitution—at its bedrock or otherwise—we
review a violation of that rule for harmless error.
Johnson, 117 F.4th at 41 (internal quotation marks, alterations, and
citations omitted).
The court did not suggest in passing that structural errors must
be constitutional but directly endorsed that proposition in “a portion
of the opinion necessary to the result.” CompassCare v. Hochul, 125
F.4th 49, 59 (2d Cir. 2025) (internal quotation marks and alterations
omitted). The proposition was central to the reasoning and necessary
to the outcome of the case. The issue “was before the court; was
argued before the court; and was passed upon by the court. It was not
dictum.” Hormel Foods Corp. v. Jim Henson Prods., Inc., 73 F.3d 497, 508
(2d Cir. 1996) (internal quotation marks, alteration, and citations
omitted).
The dissent claims that the court in Johnson did not need to
address whether structural errors must be constitutional errors
because the court decided that the lack of a twelve-person jury “‘did
not implicate the fundamental fairness of the trial procedure’ and
therefore did not constitute structural error.” Post at 6 n.1. That is a
tendentious misreading of the opinion. Johnson considered
fundamental fairness only after concluding that structural errors
must be constitutional. See Johnson, 117 F.4th at 41-42. And the opinion
made clear that the reason why the lack of a twelve-person jury does
not implicate fundamental fairness is that it does not implicate a
constitutional right: “[T]he Supreme Court has told us that convening
a jury ‘composed of precisely 12’ is ‘unnecessary to effect the
purposes of the jury system’ because the number twelve is ‘wholly
without significance.’” Id. at 42 (quoting Williams, 399 U.S. at 102).

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The court did not adopt an independent ground for concluding
that harmless-error analysis applied. The court had already
concluded that harmless-error analysis applied because a structural
error must be constitutional. See id. at 40-41. It then elaborated on that
reasoning to answer Johnson’s objection “that a violation of Rule 23(b)
should be considered a structural error because it ‘affects the very
framework within which the trial proceeds, rather than simply the
trial process itself.’” Id. at 42 (internal quotation marks and alteration
omitted) (quoting Appellant’s Br. 36). It did so by reference to the
Supreme Court’s holding that the Constitution does not guarantee a
twelve-member jury.
Even if the court had adopted an alternative ground for its
holding that harmless-error analysis applied, that still would not
justify dismissing its holding about constitutional errors as dicta.
“[W]here a decision rests on two or more grounds, none can be
relegated to the category of obiter dictum.” Woods v. Interstate Realty
Co., 337 U.S. 535, 537 (1949); see also Omega SA v. 375 Canal, LLC, 984
F.3d 244, 251 n.4 (2d Cir. 2021). “[E]ach is the judgment of the court,
and of equal validity with the other.” Union Pac. R.R. Co. v. Mason City
& Fort Dodge R.R. Co., 199 U.S. 160, 166 (1905). The Johnson court held
that only the violation of a basic constitutional right may qualify as a
structural error. But even if the court had separately held, without
regard to constitutional concerns, that the lack of a twelve-person jury
does not implicate fundamental fairness, both holdings would
equally represent a binding holding of the court.
B
The separate concurrence makes a similar error. It claims that
the holding of Johnson was “unnecessary” because “controlling
precedent” established that a twelve-person jury is not a “substantial

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right.” Ante at 3. We observed in Johnson that we have previously held
that the right to a twelve-member jury is not “substantial” for
purposes of the Ex Post Facto Clause. See Johnson, 117 F.4th at 40
(quoting United States v. Stratton, 779 F.2d 820, 834 (2d Cir. 1985)). That
prior precedent did not “control” the outcome in Johnson. Whether a
right is “substantial” under the Ex Post Facto Clause does not dictate
whether its violation qualifies as a structural error. In fact, we have
never explained what it even means for a right to be considered
“substantial” for ex post facto purposes. “[T]he meaning of
‘substantial’ in this context is not clear.” Stratton, 779 F.2d at 833. The
only reason we identified for concluding that the twelve-member jury
does not qualify as a substantial right under the Ex Post Facto Clause
is that it lacks constitutional status: “neither the Sixth nor Fourteenth
Amendment guarantees a jury of twelve.” Id. at 834.
In Johnson, we explained all of this. We said that the reason for
our previous holding that the twelve-member jury is not a substantial
right under the Ex Post Facto Clause is that the Constitution does not
guarantee it:
We therefore have held that the retroactive application of
amended Rule 23(b), allowing conviction by eleven
jurors, did not violate the Ex Post Facto Clause.
“Whatever disadvantage to the defendant may occur
from reducing the jury size from twelve to eleven is of
insufficient proportion to give him a constitutional right to
a jury of twelve, and it does not affect the substantial
rights of the defendant for Ex Post Facto purposes.”
Johnson, 117 F.4th at 40 (emphasis added) (alteration omitted)
(quoting Stratton, 779 F.2d at 835). Thus, by citing this prior precedent,
the Johnson court was not adopting an alternative holding. Rather, the
court explained that (1) we have previously held the twelve-member

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jury right not to be “substantial” because it is not constitutional, and
(2) that approach supports our decision to hold that the right is not
“structural” for the same reason. We said that “[t]hese prior
precedents—holding that the right to a twelve-member jury is neither
a constitutional nor even a substantial right—mean that a violation of
Rule 23(b)’s twelve-member requirement cannot amount to a
structural error” because “[w]e depart from [the generally applicable]
harmless-error analysis only for a limited class of fundamental
constitutional errors that defy analysis by ‘harmless error’ standards.”
Id. (internal quotation marks omitted).
Even if the prior decision in Stratton could have supported the
result in Johnson for a reason other than the constitutional rationale on
which Johnson relied, that would not diminish the precedential weight
of Johnson’s holding. “Nor is it relevant for present purposes [that]
these holdings might instead have been rested on other available
grounds.” Burnham v. Superior Ct. of Cal., 495 U.S. 604, 613 n.2 (1990).
The reasoning of a panel opinion binds a later panel even if the later
panel can imagine a narrower rationale for the earlier decision. “Even
assuming [a prior] court was not required to decide the way it did,
once it did so, its decision became binding precedent.” S&R Co. of
Kingston v. Latona Trucking, Inc., 159 F.3d 80, 83 (2d Cir. 1998).
“A court’s stated and, on its view, necessary basis for deciding
does not become dictum because a critic would have decided on
another basis.” Henry J. Friendly, In Praise of Erie—and of the New
Federal Common Law, 39 N.Y.U. L. Rev. 383, 385-86 (1964). Indeed, the
assertion that “the court’s reasoning is not considered part of the
holding” but that the “holding consists of nothing more than the facts
of the case, together with the result,” is “nothing more than a cynical,
rhetorical device for overruling, or escaping, the precedent of a prior
opinion without forthrightly acknowledging doing so.” Leval, supra,

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at 1256 n.20. Johnson held that non-constitutional errors are
necessarily subject to harmless-error review. Even if other judges
might have written the opinion differently, that conclusion was the
“rationale upon which the [c]ourt based the results” it reached.
Seminole Tribe, 517 U.S. at 66-67.
C
This order denying rehearing en banc features the spectacle of
judges simultaneously concurring and dissenting in the same case
with respect to the same result. Normally, a concurrence or a dissent
provides reasons supporting or opposing the disposition of the court.
Here, judges who disagree about the result focus on whether Johnson’s
holding can be dismissed as dicta. But the opinions do not even agree
on the reasoning for that specific point. The dissent insists that Johnson
held only that the lack of a twelve-person jury does “not implicate the
fundamental fairness of the trial procedure.” Post at 6 n.1. That is
wrong. See supra Part II.A. The concurrence insists that Johnson was
dictated by prior precedent about the Ex Post Facto Clause. See ante at
3. That is also wrong, but for different reasons. See supra Part II.B.
Under any view of the holding-dicta distinction—but
especially under the view that the separate opinions endorse—
anything said here about the precedential status of Johnson is itself
dicta. The court has decided not to exercise its discretion under
Rule 40(c) to order an en banc rehearing of Johnson. To reach that
result, it is not necessary to decide whether the holdings of Johnson
may be dismissed as dicta in a future case. And certainly the views of
those judges who voted in favor of en banc rehearing do not explain
the decision of the court to deny it. Among the judges in the majority
who voted to deny rehearing, four join this concurrence and three join
the other concurrence in full or in part.

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In any event, it was the decision of the Johnson panel that
resolved the appeal in this case. “The active judges declined to revisit
that decision en banc. The panel decision is therefore the [c]ourt’s
decision. Other judges may have views on the matter, but the case is
not before them, and what they may say about it has as much force of
law as if those views were published in a letter to the editor of their
favorite local newspaper.” United States v. Stewart, 597 F.3d 514, 519
(2d Cir. 2010) (Pooler, J., concurring in the denial of rehearing en banc)
(emphasis added).
The decision of a panel of this court “is binding unless and until
it is overruled by the [c]ourt en banc or by the Supreme Court.” Jones
v. Coughlin, 45 F.3d 677, 679 (2d Cir. 1995). The conclusion of Johnson
that structural errors must be constitutional errors was necessary to
the judgment and therefore a holding of the court. It bears
emphasizing that—contrary to the suggestions of the other
opinions—this holding of Johnson reflects the majority view among
the appellate courts.1 Because the active judges of the Second Circuit
have declined to reconsider that holding, it remains binding.
1 See United States v. Mojica-Baez, 229 F.3d 292, 309 (1st Cir. 2000) (“Certain
categories of error interfere with such basic and fundamental constitutional
protections that they go to the structure of our criminal law system. …
Other errors have been designated as structural in order to vindicate
compelling constitutional policies.”); United States v. Nappi, 243 F.3d 758,
770 (3d Cir. 2001) (rejecting a claim of structural error because “it is clear
that the error that occurred here, without more, is not of constitutional
dimension”); United States v. Ross, 72 F.4th 40, 47 (4th Cir. 2023) (“To qualify
as structural, an error must not only implicate a defendant’s constitutional
rights but also affect the very framework in which a trial proceeds.”)
(internal quotation marks omitted); In re Halprin, 788 F. App’x 941, 944 (5th
Cir. 2019) (“[S]tructural error is a type of constitutional error.”); United
States v. Gonzalez-Huerta, 403 F.3d 727, 734 (10th Cir. 2005) (“[G]enerally
speaking structural errors must, at a minimum, be constitutional errors.”).

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* * *
In Johnson, this court held that (1) there is no constitutional right
to a twelve-member jury, (2) a structural error must involve the denial
of a constitutional right, and (3) the violation of Rule 23(b) must
therefore be reviewed for harmlessness. Because those holdings are
correct and should remain the law of the circuit, I concur in the denial
of rehearing en banc.
But see Green v. United States, 262 F.3d 715, 718 (8th Cir. 2001); McGriff v.
Dep’t of Corr., 338 F.3d 1231, 1235 (11th Cir. 2003); United States v. Essex, 734
F.2d 832, 845 (D.C. Cir. 1984). As Johnson noted, a split decision of the Fourth
Circuit previously indicated support for the minority position, see Johnson,
117 F.4th at 41-42 (discussing United States v. Curbelo, 343 F.3d 273 (4th Cir.
2003)), but the Fourth Circuit has since adopted the majority view, see Ross,
72 F.4th at 47.

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22-1289
United States v. Johnson
MERRIAM, Circuit Judge, joined by LEE , ROBINSON, PÉREZ , and N ATHAN, Circuit
Judges, dissenting from the denial of rehearing en banc:
Some trial errors can never be harmless. Some errors so infect the conduct
of a trial, or the determination of a verdict, that they require a clean slate, and a
new trial, to protect the defendant’s essential rights. Such errors are structural –
that is, they alter and undermine the very structure of a criminal trial.
This case presents the question of whether a violation of Federal Rule of
Criminal Procedure 23(b) that reduces a criminal jury to eleven – before
deliberations begin and over the objection of the defendant – constitutes a
structural error that may not be considered harmless. The majority panel
opinion “agree[d] with Johnson . . . that the district court violated Rule 23(b)
when it proceeded with an eleven-member jury before deliberation without a
stipulation from the parties.” Majority Op. at 19. But the majority opinion
concluded, over Judge Chin’s dissent, that such an error is not structural, and
went on to find the error harmless.
Judge Chin’s dissent from the panel opinion thoroughly and persuasively
articulates how the majority opinion gets the structural error analysis wrong. We
believe that we should have convened en banc to find that the District Court’s

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2
error was not subject to harmless error review, and to remand for a new trial.
And, particularly in light of dicta in the majority opinion suggesting that an error
must implicate a constitutional right to be structural, we believe we should have
taken this opportunity to state clearly that a trial error may be structural – and
therefore not subject to harmless error review – even if it does not implicate a
constitutional right. The District Court erroneously denied Johnson a jury of
twelve. The right to a jury of twelve is firmly entrenched in our history, and the
improper dismissal of even one juror impacts the outcome of a trial in systemic
ways that cannot be accurately predicted in advance or assessed in retrospect.
Such an error is structural, and that is a matter of exceptional importance that
this Court should address. See Fed. R. App. P. 40(b)(2)(d). We therefore dissent
from the denial of rehearing en banc.
* * *
“[T]he defining feature of a structural error is that it affects the framework
within which the trial proceeds, rather than being simply an error in the trial
process itself. For the same reason, a structural error defies analysis by harmless
error standards.” Weaver v. Massachusetts, 582 U.S. 286, 295 (2017) (citations and
quotation marks omitted); see also Greer v. United States, 593 U.S. 503, 513 (2021).

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3
The Supreme Court has identified three broad categories of errors that have been
held to be structural: (1) errors that impact a right “not designed to protect the
defendant from erroneous conviction but [that] instead protects some other
interest,” such as “the defendant’s right to conduct his own defense”; (2) errors
whose effects are “simply too hard to measure,” such as “when a defendant is
denied the right to select his or her own attorney”; and (3) errors that “always
result[] in fundamental unfairness,” such as a failure “to give a reasonable-doubt
instruction.” Weaver, 582 U.S. at 295-96. “These categories are not rigid.” Id. at
296. And “one point is critical: An error can count as structural even if the error
does not lead to fundamental unfairness in every case.” Id.
The Supreme Court could easily have stated, in this discussion, that any
such error must also be constitutional in nature. It did not. Indeed, neither the
Supreme Court nor this Court has ever stated that only constitutional errors can
be considered structural. To the contrary, Supreme Court precedent supports the
proposition that whether a non-constitutional error can be structural is, at a
minimum, an open question.
In Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787 (1987), the
defendants were convicted of criminal contempt for violating a permanent

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4
injunction prohibiting infringement of a manufacturer’s trademark. They
challenged their convictions on the basis that the court-appointed special
prosecutor conducting the criminal contempt prosecution was also the
manufacturer’s counsel. Although the Supreme Court upheld the district court’s
authority to appoint a special counsel to prosecute the case, it concluded that the
attorney representing the private beneficiary of the injunction could not serve in
that capacity. See id. at 801-02. A plurality of the Supreme Court found that
harmless error review did not apply, citing Delaware v. Van Arsdall, 475 U.S. 673,
681 (1986), for the proposition that “some errors are so fundamental and
pervasive that they require reversal without regard to the facts or circumstances
of the particular case.” Id. at 809-10 (citation and quotation marks omitted). It
explained that “[a]n error is fundamental if it undermines confidence in the
integrity of the criminal proceeding.” Id. at 810. Comparing the error there with
errors such as racial discrimination in grand jury selection, exposing a petit jury
to publicity unfavorable to the defendant, or adjudication by a conflicted judicial
officer, the plurality concluded: “A concern for actual prejudice in such
circumstances misses the point, for what is at stake is the public perception of the
integrity of our criminal justice system.” Id. at 811. Significantly, the majority of

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5
the Supreme Court did not identify the error as constitutional, instead grounding
its holding in the supervisory authority of courts to enforce their own orders. See
id. at 808-09. Thus, Young offers an example of an error that was not viewed as a
constitutional error, but that a plurality of the Supreme Court nonetheless treated
as a structural error that defies harmless error review.
Our own precedent, too, suggests that structural errors need not have
constitutional dimensions. In United States v. Li, for example, we held that
although “a defendant’s right to a sentencing allocution is a matter of criminal
procedure and not a constitutional right, it is nonetheless considered an ‘absolute
right’ in the federal courts,” such that “resentencing is typically appropriate if the
sentencing court has not complied with the allocution requirement.” 115 F.3d
125, 132-33 (2d Cir. 1997) (citations omitted). Likewise, we have observed that
“[c]ategories of error found by the Supreme Court to be ‘structural’ ordinarily
relate to ‘certain basic, constitutional guarantees that should define the
framework of any criminal trial.’” Shabazz v. United States, 923 F.3d 82, 84 (2d
Cir. 2019) (quoting Weaver, 582 U.S. at 295) (emphasis added).
In spite of this background, and although no such rule is necessary to its
holding, the majority opinion suggests that structural error must be anchored in

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6
constitutional error. See Majority Op. at 16 (citing a dissenting opinion of another
Circuit for the proposition that “the Supreme Court and the appellate courts
‘have repeatedly made clear that structural errors necessarily must affect a
defendant’s constitutional rights’” (quoting United States v. Curbelo, 343 F.3d 273,
289 (4th Cir. 2003) (Wilkins, J., dissenting))).1 As the opinion of Judge Lohier
concurring in the denial of en banc review points out, the panel opinion’s
“statements bearing on a hypothetical structural error that is non-constitutional
are clearly dicta.” Lohier, J., Concurring Op. at 1. 2 On this point, we agree with
Judge Lohier’s opinion: “[T]he question of whether a structural error must
implicate a defendant’s constitutional rights remains an open one in this Circuit.”
Id. at 5.
1 The majority opinion rested its decision on its conclusion that the Rule 23(b)
violation here, denying the defendant a jury of twelve, “did not implicate the
fundamental fairness of the trial procedure” and therefore did not constitute
structural error. Majority Op. at 17. As such, the discussion in the opinion of
whether an error must be constitutional to be structural was unnecessary to the
majority’s decision and is therefore dicta.
2 Four active judges — including only one member of the original panel — have
expressed the view that the statements are not dicta. Eight active judges have
expressed the view that they are. Those views are based on each judge’s
individual reading of the original panel opinion. None has any more weight
than any other.

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7
The majority panel opinion cites Neder v. United States, 527 U.S. 1 (1999), for
the following proposition: “We depart from . . . harmless-error analysis only for
‘a limited class of fundamental constitutional errors that defy analysis by
“harmless error” standards.’” Majority Op. at 14 (quoting 527 U.S. at 7). But
Neder does not, in fact, limit the scope or concept of structural error in the way
the majority opinion suggests.
Neder observes that certain “fundamental constitutional errors” can affect
substantial rights and defy harmless error review; it does not instruct that only
such errors can do so: “[W]e have recognized a limited class of fundamental
constitutional errors that defy analysis by ‘harmless error’ standards. Errors of
this type are so intrinsically harmful as to require automatic reversal (i.e., ‘affect
substantial rights’) without regard to their effect on the outcome.” 527 U.S. at 7
(citations and quotation marks omitted). The Supreme Court explained that such
cases
contain a defect affecting the framework within which the trial
proceeds, rather than simply an error in the trial process itself. Such
errors infect the entire trial process and necessarily render a trial
fundamentally unfair. Put another way, these errors deprive
defendants of basic protections without which a criminal trial cannot
reliably serve its function as a vehicle for determination of guilt or
innocence and no criminal punishment may be regarded as
fundamentally fair.

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8
Id. at 8-9 (citations and quotation marks omitted).
Again, as was true in Young, the Supreme Court in Neder could have, but
did not, expressly limit structural errors to those impacting a defendant’s
constitutional rights. It again declined to do so in Weaver. Rather, the Supreme
Court’s decisions direct us to inquire whether the district court’s error affects a
defendant’s substantial rights, rendering the trial or the verdict fundamentally
unfair, and undermining confidence in the process – not whether those rights are
fundamentally constitutional in nature. Cf. Fed. R. Crim. P. 52(a) (allowing
harmless error review where the error “does not affect substantial rights”
(emphasis added)).
The right to a jury of twelve is properly viewed as a substantial right. This
Court has never addressed the question of whether a Rule 23(b) violation affects
substantial rights in cases – like Johnson’s – where a twelfth juror was excused
prior to deliberations and without the defendant’s consent. Other Courts of
Appeals have recognized that Rule 23(b) violations require reversal. As Judge
Chin’s dissent points out, some have expressly found the error to be structural.
See Dissenting Op. at 13 (citing Curbelo, 343 F.3d at 285; United States v. Taylor, 498
F.2d 390 (6th Cir. 1974); United States v. Essex, 734 F.2d 832 (D.C. Cir. 1984)).

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9
Others have remanded for new trials based on the Rule 23(b) error, without any
express discussion of harmless or structural error. See, e.g., United States v.
Tabacca, 924 F.2d 906 (9th Cir. 1991) (remanding for a new trial because there was
not good cause for dismissal of the twelfth juror); United States v. Araujo, 62 F.3d
930 (7th Cir. 1995) (same). The majority opinion conflicts with these decisions of
our sister circuits, which both undermines its persuasiveness and further
supports the rationale for rehearing this matter en banc. See Fed. R. App. P.
40(b)(2)(c).
The majority opinion also departs from the holdings of this and the other
Courts of Appeals in declaring that “[o]ne additional juror participating in the
deliberation would not have affected the outcome on the counts that resulted in
conviction.” Majority Op. at 21. There is no factual basis for that statement; it
represents nothing more than “appellate speculation about a hypothetical
[twelve-member] jury’s action.” Sullivan v. Louisiana, 508 U.S. 275, 280 (1993).3
3 In fact, it is evident from the record that in this case, one juror very well might
have changed things, because the jury appears to have had difficulty reaching a
verdict. Over the course of its deliberations, the jury submitted multiple notes to
the District Court, including one that read: “At this time we have not reached a
conclusion on one of the counts. We do not believe we will reach a consensus.
How do we proceed[?]” App’x at 540. It deliberated for more than two days,
after hearing only one day of evidence, including continued deliberations after
receiving guidance from the District Court. It may even be that the verdict was a

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10
We simply cannot know how that one juror might have changed the outcome,
because we do not know what is in the jurors’ minds; we do not know the
dynamics of their deliberations. “As a general rule, no one – including the judge
presiding at a trial – has a ‘right to know’ how a jury, or any individual juror, has
deliberated or how a decision was reached by a jury or juror.” United States v.
Thomas, 116 F.3d 606, 618 (2d Cir. 1997). As Judge Chin’s dissenting opinion
observes: “Because an appellate court cannot know what effect a twelfth juror
might have had on jury deliberations, making such a determination would be
based, inherently, on pure speculation.” Dissenting Op. at 10; accord Curbelo, 343
F.3d at 281. The addition or removal of even a single juror might increase the
chances of conviction – or of acquittal – and quite obviously increases the
chances of a lone holdout resulting in a mistrial.4
compromise arrived at by a hopelessly hung jury. We simply have no idea; that
is why the concept of harmless error is so misplaced in this context.
4 As fictionally depicted in the film 12 Angry Men nearly 70 years ago, the effect
one juror can have on the deliberation process remains a cultural touchstone.
See, e.g., Jason D. Reichelt, Standing Alone: Conformity, Coercion, and the Protection
of the Holdout Juror, 40 U. Mich. J.L. Reform 569, 622 (2007) (“[A] lone dissenter
who has an honest disagreement with the rest of the jury regarding the existence
or absence of reasonable doubt deserves as much respect and deference as any
member of the overwhelming majority.”).

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11
Rule 23(b) recognizes the significant impact that each individual juror has
on the process and thus limits the circumstances in which a jury of fewer than
twelve persons may return a verdict. Rule 23(b) is not just a procedural rule; it
safeguards the fundamental right to trial by a properly constituted jury.5 “[T]rial
by jury in criminal cases is fundamental to the American scheme of justice,”
reflecting “a profound judgment about the way in which law should be enforced
and justice administered.” Duncan v. Louisiana, 391 U.S. 145, 149, 155 (1968).
And “trial by jury” at common law has always meant trial by a jury of twelve.6
5 Significantly, other errors that undermine the integrity of a jury trial are
considered structural errors not subject to harmless error review. See, e.g.,
Galarza v. Keane, 252 F.3d 630, 638 n.8 (2d Cir. 2001) (“[A] Batson error is a
structural error that is not subject to harmless error review.” (citations and
quotation marks omitted)).
6 Numerous sources – including several that have been relied upon by the
Supreme Court in other contexts – confirm the historical expectation of and right
to a twelve-person jury. See, e.g., 1 Joseph Chitty, Criminal Law 411 (Am. ed.
1819) (“The petit jury, when sworn, must consist precisely of twelve, and is never
to be either more or less on the trial of the general issue . . . . If, therefore, the
number returned be less than twelve, any verdict must be ineffectual, and the
judgment will be reversed for error.” (emphasis added)); 2 W. Russell & C.
Greaves, Crimes and Misdemeanors 675 (5th Am. ed. 1845) (noting that a charge of
conspiracy “against the public justice of the kingdom” to “indict an innocent
person falsely and maliciously of felony” [akin to modern-day malicious
prosecution] may lie where a person is indicted on a charge, but “afterwards the
party is lawfully acquitted by the verdict of twelve men” (emphases altered));
2 Matthew Hale, The History of the Pleas of the Crown 295 (1st Am. ed. 1847) (“If
after the jury sworn . . . eleven cannot give any verdict without the twelfth . . . and

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12
For all of these reasons, and for the reasons persuasively articulated in
Judge Chin’s dissenting opinion, we believe “we must follow our sister circuits
and conclude that the court’s decision to excuse the twelfth juror prior to
deliberations and absent the defendant’s consent falls into the special category of
errors that ‘defy analysis by harmless-error standards’ and require automatic
reversal because they are ‘necessarily unquantifiable and indeterminate.’”
Curbelo, 343 F.3d at 285 (quoting Sullivan, 508 U.S. at 281-82).
The range of errors that can be considered structural, and thus not subject
to harmless-error review, has not been clearly delineated by the Supreme Court.
But there is no sound basis for concluding that only constitutional errors may be
considered structural. Rehearing this matter en banc would provide us with an
opportunity to clarify that even if not a constitutional right, the long-established
right to a jury of twelve is nonetheless a substantial right, the violation of which
impacts the fairness and integrity of the entire trial. The violation of such a right
should not be subject to harmless error review. We therefore respectfully dissent
from the denial of rehearing en banc.
that jury may be discharged, and a new jury sworn, and new evidence given, and
the verdict taken of the new jury . . . .” (emphasis added)).

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C HIN, Senior Circuit Judge, statement of views with respect to the denial of
rehearing en banc:1
In my view, for the reasons set forth in Judge Merriam's dissent
from the denial of rehearing en banc and in my dissent from the panel decision,
see United States v. Johnson, 117 F.4th 28, 53 (2d Cir. 2024), the Court should have
voted to rehear this case en banc. Defendant-appellant Rickey Johnson's
convictions should be set aside because he was found guilty by a jury of fewer
than twelve persons, in clear violation of his rights. I write only to emphasize a
few points.
First, the panel majority concluded that "the Supreme Court has said
that there is no constitutional right to a twelve-member jury." Id. at 40
(discussing Williams v. Florida, 399 U.S. 78, 102 (1970)). But Williams involved
state criminal proceedings and a Florida statute that permitted six-person juries
in non-capital cases. See 399 U.S. at 86 ("We hold that the 12-man panel is not a
necessary ingredient of 'trial by jury,' and that [the State]'s refusal to impanel
more than the six members provided for by Florida law did not violate
1 As a senior judge, I have no vote on whether to rehear a case en banc. See Fed. R.
Civ. P. 35(a). As a member of the original panel in this case, however, pursuant to the
Court's en banc protocols, I may file a statement of views in the circumstances here,
where an active judge has filed a dissent from an order of the Court denying or granting
rehearing en banc.

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2
petitioner's Sixth Amendment rights as applied to the State through the
Fourteenth [Amendment]."). The Supreme Court's holding that a defendant does
not have a Sixth Amendment right to a twelve-person jury in those circumstances
does not preclude the conclusion that a defendant has a constitutional right to a
twelve-person jury in federal criminal proceedings, and this is very much an open
question. See United States v. Curbelo, 343 F.3d 273, 279 n.5 (4th Cir. 2003) (noting
that "the Supreme Court has never held that the Sixth Amendment does not
require a twelve-person jury in federal prosecutions." (third emphasis added)); 2
Charles Alan Wright & Peter J. Henning, Federal Practice and Procedure § 373
(4th ed. 2009) ("Rule 23(b)(1) continues to require a jury of 12, and it may well be
that in federal court a jury of that size is still constitutionally compelled."
(footnotes omitted)). In light of the constitutional protections given to the right
of trial by jury generally,2 the importance of a twelve-person jury in our history,3
2 See U.S. Const. art. III, § 2, cl. 3 ("The Trial of all Crimes, except in Cases of
Impeachment, shall be by Jury."); U.S. Const. amend. VI ("In all criminal prosecutions,
the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the
State and district wherein the crime shall have been committed . . . .").
3 "[T]he general infrastructure of the criminal jury as a twelve-member body
rendering unanimous verdicts was clearly established by" the late 14th century in
England. Robert H. Miller, Comment, Six of One is Not a Dozen of the Other: A
Reexamination of Williams v. Florida and the Size of State Criminal Juries, 146 U. Pa. L. Rev.
621, 638-39 (1998); see also Ramos v. Louisiana, 590 U.S. 83, 90 (2020) (noting that one late
14th century English decision stated that a "'verdict, taken from eleven, was no verdict'

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3
and the clear terms of Rule 23(b) of the Federal Rules of Criminal Procedure,4
there is, I believe, a constitutional right to a twelve-person jury in federal criminal
proceedings. Accordingly, even assuming structural error requires constitutional
error, Rickey Johnson's constitutional right to a twelve-person jury was violated
here.
Second, as Judge Merriam persuasively argues and as set forth in
my dissent from the panel decision, the law does not limit structural errors to
at all" (quoting James Bradley Thayer, A Preliminary Treatise On Evidence At The
Common Law 88-89 n.4 (1898)). In 1769, Blackstone reiterated the common-law rule --
no person could be found guilty of a serious crime unless "the truth of every accusation
. . . should afterwards be confirmed by the unanimous suffrage of twelve of his equals
and neighbours, indifferently chosen." William Blackstone, 4 Commentaries on the
Laws of England 349 (Thomas Cooley ed., 1871). This same common-law rule applied
in the young American colonies, see, e.g., IV. Unshrinking the Federal Civil Jury, 110 Harv.
L. Rev. 1466, 1468 (1997) ("In the American colonies, the Charter of Jamestown
established the twelve-person jury in 1607."), and well after the Sixth Amendment's
adoption, see, e.g., Joseph Story, 2 Commentaries on the Constitution of the United
States 588 (1858) ("And a trial by jury is generally understood to mean, ex vi termini, a
trial by a jury of twelve men, impartially selected, who must unanimously concur in the
guilt of the accused before a legal conviction can be had. Any law therefore, dispensing
with any of these requisites, may be considered unconstitutional."); Foote v. Lawrence, 1
Stew. 483, 483 (Ala. 1828) ("The term jury is well understood to be twelve men . . . .");
Work v. State, 2 Ohio St. 296, 304 (1853) ("The number must be twelve . . . .").
4 Rule 23(b)(1) provides that "[a] jury consists of 12 persons unless this rule
provides otherwise." Rule 23(b)(2)(A) provides that the parties may stipulate in writing,
with the court's approval, to a jury of "fewer than 12 persons." Rule 23(b)(3) provides,
however, that "[a]fter the jury has retired to deliberate, the court may permit a jury of 11
persons to return a verdict, even without a stipulation by the parties, if the court finds
good cause to excuse a juror."

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4
those of a constitutional dimension. Even if the right to a twelve-person jury in
federal criminal cases is not a constitutional right, it surely is a "substantial right."
See Fed. R. Crim. P. 52(a) ("Any error, defect, irregularity, or variance that does
not affect substantial rights must be disregarded." (emphases added)). Structural
errors "infect the entire trial process," Neder v. United States, 527 U.S. 1, 8 (1999)
(quoting Brecht v. Abrahamson, 507 U.S. 619, 630 (1993)), and harmless error
review is inappropriate where "the effects of the error are simply too hard to
measure," Weaver v. Massachusetts, 582 U.S. 286, 295 (2017). The "defining feature
of a structural error," id., is that it "affect[s] the framework within which the trial
proceeds, rather than simply an error in the trial process itself," Neder, 527 U.S. at
8. The error here infected the framework of the trial itself, and its effects are
indeed too hard to measure because we cannot, on appeal, know with any
degree of certainty what impact a twelfth juror would have had in this
exceedingly close case, where the eleven-person jury clearly labored to reach a
unanimous verdict. An additional juror could have tipped the balance or caused
a hung jury and a mistrial. The district court's error in denying Johnson a
twelve-person jury is, in my view, structural, and therefore harmless error
analysis does not apply.

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5
Third, even if the error is not deemed structural and harmless error
analysis does apply, the government failed to meet its burden of demonstrating
that the error was harmless. Where a defendant timely objects to an error and
Rule 52(a) applies, the government bears the burden of showing that the
defendant was not prejudiced by the error. See United States v. Olano, 507 U.S.
725, 734-35 (1993). The government has not met its burden here. This was
indeed a close case, as the jury deliberated for more than two days to render a
split verdict, sending out notes showing that it was struggling (including
inquiring about the impact of mental illness in a case where the defendant
engaged in manifestly erratic behavior), when the presentation of evidence took
only the equivalent of one day. These are all indications that the jury had great
difficulty reaching a verdict; a twelfth juror could very well have tipped the
balance or brought about a deadlock. See generally 117 F.4th at 61-63.5 The
panel's decision is also problematic because it injects a prejudice requirement
5 In determining whether the government has met its burden, "we ask whether we
can conclude with fair assurance that the errors did not substantially influence the jury."
United States v. Gupta, 747 F.3d 111, 133 (2d Cir. 2014) (citation and quotation marks
omitted). "The inquiry cannot be merely whether there was enough [evidence] to
support the result, apart from the phase affected by the error. It is rather, even so,
whether the error itself had substantial influence. If so, or if one is left in grave doubt,
the conviction cannot stand." Kotteakos v. United States, 328 U.S. 750, 765 (1946).

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6
into Rule 23(b) when no such requirement exists, and it would effectively permit
a trial court to proceed with an eleven-person jury whenever it believed there
was good cause to excuse a juror and the evidence of guilt was strong.
Finally, in these en banc polls where members of the Court debate
whether "questions of exceptional importance" are presented, Fed. R. App. P.
40(b)(2)(D), we must not lose sight of the impact our rulings have on the
individuals involved. Even if it is not likely that the error that occurred in this
case will recur with any frequency, Johnson still bears the burden of the collateral
consequences that come with three felony convictions.
In short, the Court should have granted rehearing en banc, the
judgment of the district court should be vacated, and the case should be
remanded for a new trial – before a jury of twelve.

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