                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 06-5225



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


BILL GREEN,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington.  Robert C. Chambers,
District Judge. (3:06-cr-00143)


Submitted:    December 10, 2007        Decided:     December 21, 2007


Before NIEMEYER, SHEDD, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


David D. Perry, LAW OFFICE OF DAVID D. PERRY, Huntington, West
Virginia, for Appellant.      Charles T. Miller, United States
Attorney, Joshua C. Hanks, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Bill Green appeals from his jury convictions for two

counts of distribution of cocaine base in violation of 21 U.S.C.

§ 841(a)(1) (2000).     Finding no reversible error, we affirm.

            Green challenges the district court’s dismissal of a

juror after deliberations began and continuation with an eleven-

member jury.     Under Federal Rule of Criminal Procedure 23(b)(1),

“[a] jury consists of 12 persons.”         However, “[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 of the parties, if the

court finds good cause to excuse a juror.”               Fed. R. Crim. P.

23(b)(3).     The district court’s application of Rule 23(b) is

reviewed for abuse of discretion.         See    United States v. Levenite,

277 F.3d 454, 464-65 (4th Cir. 2002); United States v. Acker, 52

F.3d 509, 515-16 (4th Cir. 1995).

            Green argues that the court abused its discretion by

dismissing, over the lunch recess, a juror whose grandmother had

died.     However, the district court had discretion to dismiss the

twelfth juror for cause--the death of the juror’s immediate family

member.      Before   proceeding   with    the    eleven-member   jury,   the

district court gave counsel the opportunity to object.                Green

raised no objections.       Under these circumstances, we find the

district court did not abuse its discretion under Federal Rule of




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Criminal   Procedure   23(b)(3)    by     dismissing   the   juror    after

deliberations began and proceeding with an eleven-member jury.

           Green also argues the district court erred in denying his

motion for permission to interview the jurors.         Green contends he

should have been allowed to interview the jurors after the verdict

to determine if the dismissed juror was a holdout for acquittal

before she was dismissed. Green has made no showing of “extraneous

prejudicial information” or “outside influence” being brought to

bear on the dismissed juror or any other juror and thus the

district court did not err in denying the motion for permission to

interview the jurors.    See Acker, 52 F.3d at 515-16 (rejecting

similar claim and stating “courts have consistently rejected juror

affidavits or testimony about mental processes unless ‘extraneous

prejudicial   information’   or    ‘outside     influence’   is      clearly

present”) (citing Federal Rule of Evidence 606(b)); see also Tanner

v. United States, 483 U.S. 107, 119-28 (1987); United States v.

Gravely, 840 F.2d 1156, 1159 (4th Cir. 1988).          We thus conclude

there is no basis upon which to conclude the district court erred

in rejecting Green’s motion.

           Accordingly, we affirm the district court’s judgment. We

dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court and

argument would not aid the decisional process.

                                                                  AFFIRMED


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