                     FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 05-50608
                Plaintiff-Appellee,
               v.                                  D.C. No.
                                                CR-04-00141-AHS
MICHAEL JOSEPH MURPHY,
                                                   OPINION
             Defendant-Appellant.
                                           
         Appeal from the United States District Court
             for the Central District of California
        Alicemarie H. Stotler, District Judge, Presiding

                     Argued and Submitted
              July 28, 2006—Pasadena, California

                       Filed April 18, 2007

      Before: John R. Gibson,* Pamela Ann Rymer, and
              Richard R. Clifton, Circuit Judges.

                    Opinion by Judge Clifton;
                    Dissent by Judge Gibson




   *The Honorable John R. Gibson, Senior United States Circuit Judge for
the Eighth Circuit, sitting by designation.

                                 4395
                  UNITED STATES v. MURPHY              4397


                        COUNSEL

Jason Dickstein (argued), Washington Aviation Group, PC
and the Law Offices of Jason A. Dickstein, Washington, D.C.,
for the defendant-appellant.

Debra W. Yang, United States Attorney, Wayne R. Gross,
Assistant United States Attorney, and Thomas S. McConville
(argued), Assistant United States Attorney, Santa Ana, Cali-
fornia, for the plaintiff-appellee.
4398               UNITED STATES v. MURPHY
                          OPINION

CLIFTON, Circuit Judge:

   This case presents the question of whether a stipulation to
proceed with a jury of fewer than twelve members, permitted
under Federal Rule of Criminal Procedure 23(b)(2)(A), con-
stitutes a violation of the requirement that a verdict be unani-
mous, under Federal Rule of Criminal Procedure 31, in
circumstances where there is some indication of a holdout
juror. We conclude that under the circumstances here, where
the defendant knowingly and intelligently stipulated to dis-
missing a juror and received a unanimous verdict by the
remaining eleven jurors, the district court did not abuse its
discretion in denying a new trial.

I.   Background

   Appellant Michael Joseph Murphy was charged with viola-
tions of 18 U.S.C. § 287 and 18 U.S.C. § 1001 for making
false claims and statements in connection with a government
contract. After three days of trial, the jury began its delibera-
tions on Friday, February 18, 2005.

   On Tuesday, February 22, the court received a note signed
by the jury foreperson that stated: “We have a dissenting point
of view with one juror that will have no possible position
change and requests no evidence or willing to participate.”
The parties agreed to the court’s proposed response, which
stated “The jury’s deliberations must be guided by the Court’s
instructions. For that reason, I’m submitting a copy to you for
your further consideration.” Later that same day the court
received a second jury note requesting the testimony of two
witnesses. The court reporter began to read back the testi-
mony of those witnesses to the jury. The court adjourned that
afternoon before the testimony had been completely reread.
                       UNITED STATES v. MURPHY                        4399
   The following morning, before the rereading of the testi-
mony resumed, the jury indicated to the clerk that it wanted
to confer further. At 9:27 a.m. the court received a third jury
note, which read, in the less than perfect form common in
such notes: “A juror is not willing to deliberate[,] not open to
any additional information[,] her opinion is firm and says it
will not change. We are working on it = Please give us direc-
tion.” After receiving this note, the parties agreed to stipulate
to the removal from the jury of the one member described as
not deliberating, pursuant to Federal Rule of Criminal Proce-
dure 23(b)(2)(A),1 and to proceed with the remaining eleven
jurors. The court asked Murphy directly whether the stipula-
tion was his wish after conferring with counsel about the mat-
ter, and Murphy responded that it was. The court accepted the
stipulation, finding that “there is reason, certainly to do so in
light of the compunctions, which is essentially more than once
without a refusal to deliberate,” and charged the clerk to enter
the jury room and dismiss the juror in question. The court
then stood in recess.

  At 10:16 a.m., the court resumed session, and updated the
parties as to what had occurred since the recess:

      After the last session of the court, the clerk scurried
      out to discharge the juror who hasn’t deliberated.
      The juror insisted on handing a note to a clerk. The
      juror who was discharged wrote on something which
      is a note which I have not read. And then I received
      . . . a note from the jury that they have come to a ver-
      dict. And then I have . . . a handwritten stipulation
      that counsel put together . . . [stipulating] “to the
      removal of the one juror who is not deliberating as
  1
   Under Federal Rule of Criminal Procedure 23(b)(2)(A): “At any time
before the verdict, the parties may, with the court’s approval, stipulate in
writing that . . . the jury may consist of fewer than 12 persons[.]”
4400                  UNITED STATES v. MURPHY
      noted in jury notes one and three, pursuant to federal
      criminal procedure [Rule] 23B. . . .”2

         So I have a verdict. I have a stipulation . . . and
      I have the juror’s note which I have not read and I
      will read to you now.

The court read the excused juror note, which was timed at
9:52 a.m., as stating:

      “After listening to the full . . . [testimony,] and after
      listening to the transcript and given the instructions
      we have received, I can’t find the defendant guilty
      beyond a reasonable doubt. If I were to change my
      vote, it wouldn’t be what my conscience is telling
      me is right. At worst this is negligence. I’m not con-
      vinced, based on all available information, the defen-
      dant is guilty beyond a reasonable doubt. That is not
      reasonable to me.”

         That is the best [the court] can make of [the
      juror’s] note to us.

The court then invited the parties to comment. Realizing that
the juror previously described as refusing to deliberate was a
holdout juror refusing to vote for conviction, defense counsel
moved for a mistrial based, as the court put it, “upon what is
essentially being characterized as inaccurate information in
jury notes one and three,” the notes that had described that
juror as refusing to deliberate.

  The court denied Murphy’s motion for a mistrial. It
  2
    The exact words of the written stipulation filed by the court were
“After oral discussion and stipulation on the record before the court, the
government [and] D[efendant] hereby stipulate in writing to the removal
of the one juror who is not deliberating as noted in jury notes one [and]
three, pursuant to F[ederal] Rule [of] Crim[inal] Pr[ocedure] 23(b).”
                     UNITED STATES v. MURPHY                     4401
explained that “there is no doubt [that] had the juror who was
discharged pursuant to the stipulation not essentially insisted
on giving the note to the clerk, none of us would know, really,
what she, juror number five, had to say about the point.” The
court then summoned the jury panel, reduced in size at that
point to eleven members, and received the jury’s verdict,
which held Murphy guilty on both counts by votes of eleven
to zero.

   Murphy later filed a timely motion for a new trial under
Federal Rule of Criminal Procedure 33,3 arguing that the “in-
terest of justice” required that the court vacate the judgment.
Attached to the motion was a declaration from the dismissed
juror denying that she had refused to deliberate. The court
denied the motion and subsequently sentenced Murphy to
imprisonment for twenty-four months. Murphy appealed.

II.   Discussion

   The district court’s denial of a motion for new trial based
on juror misconduct is reviewed for abuse of discretion, as is
the court’s decision to excuse a juror during deliberations.
United States v. Saya, 247 F.3d 929, 935 (9th Cir. 2001);
United States v. Egbuniwe, 969 F.2d 757, 760-61 (9th Cir.
1992).

   [1] Whether the dismissal of the juror in this case was error,
such that Murphy should be entitled to a new trial, is a ques-
tion framed primarily by two Rules of Criminal Procedure:
Rule 23(b)(2)(A), which provides that at any time before the
verdict, the parties may, with the court’s approval, stipulate in
writing that the jury may consist of fewer than twelve per-
sons; and Rule 31, which states without qualification that the
jury verdict must be unanimous. Unlike jury size under Rule
  3
    Federal Rule of Criminal Procedure 33(a) provides: “Upon the defen-
dant’s motion, the court may vacate any judgment and grant a new trial
if the interest of justice so requires.”
4402               UNITED STATES v. MURPHY
23, Rule 31’s requirement for unanimity in the verdict may
not be waived. United States v. Lopez, 581 F.2d 1338, 1340-
41 (9th Cir. 1978).

   [2] This court has not previously addressed a scenario
exactly like the one at issue here, but this and other courts
have dealt with similar situations and have interpreted Rule
23(b) to allow the parties to stipulate to removing a juror and
gamble on the effect that removal will have on the verdict, as
long as that verdict is unanimous on the part of the remaining
jurors. In United States v. Vega, 447 F.2d 698, 699-701 (2nd
Cir. 1971), for example, the Second Circuit evaluated jury
deliberations that followed a course very similar to that in the
present case. During the first few days of deliberations, the
court received two notes from the jury indicating that they
could not come to an agreement or final decision, to which the
court responded by urging the jury to try to reach a decision.
Id. at 699-700. A third note was received, reading “Your
Honor. I am the primary holdout. I cannot change my opinion
in good conscience and feel that to do so under pressure
would violate my oath as a juror. I respectfully request that
the jury be dismissed. Ralph Hoag.” Id. at 700. After reading
the message to counsel, the court said, “You have one guy
holding out. I don’t know which way he is. Do you want to
accept a jury verdict of 11. I don’t know which way they
stand.” Id. Defense counsel conferred with the defendant and
his wife, and then reported to the court, “We will only accept
a unanimous verdict. . . . Let’s see if we can get a jury of 11.”
Id. When asked in open court for confirmation, defense coun-
sel advised his client as follows: “I suggest you do it. You are
not going to get a better trial. I am telling you right now.” Id.
After the defense confirmed its assent, Mr. Hoag was
excused, and the jury continued deliberations and thereafter
returned a guilty verdict. Id. at 700-01.

  On appeal, the defendant argued that he had a statutory and
constitutional right to a unanimous verdict which could not be
waived. Id. at 701. The Vega court concluded “beyond perad-
                     UNITED STATES v. MURPHY                      4403
venture” that the “defendant was represented by competent
counsel” who

      during the selection of the jury and during the trial
      had an opportunity to select and appraise the jurors
      selected as best qualified to react favorably to the
      cause of his client. When the “holdout” crisis arose,
      the Court gave counsel every opportunity to exercise
      his courtroom judgment as to further proceedings.
      Counsel conferred with defendant . . . . Counsel was
      unwilling to accept less than a unanimous verdict but
      definitely was willing to accept a jury of 11. And, as
      measured against some other jury on a second trial,
      it was obviously his considered judgment that in
      courtroom parlance the jury “looked good” to him.

      ...

         The many cases and law review articles cited upon
      the subject of “Waiver of Jury Unanimity” are not
      applicable to the facts here presented. The defendant
      here did not waive . . . his right to a unanimous ver-
      dict. He did have a unanimous verdict. His waiver,
      knowingly and advisedly given, was of his right to
      a jury of 12. . . . Rule 23(b) of the Federal Rules of
      Criminal Procedure . . . give[s] to the parties the
      right to stipulate to a jury of less than 12, at any time
      before verdict. For this Court to hold otherwise
      would be to deprive a defendant of the opportunity
      to follow the advice of counsel of his own choice in
      making a critical decision. Defendant and his coun-
      sel probably believed that he was going to obtain a
      favorable decision from that particular jury and upon
      his agreed-upon jury of 11 he was willing to “gam-
      ble.” No statutory or constitutional error can be
      found in his exercise of these rights.

Id.
4404                  UNITED STATES v. MURPHY
   [3] Though the parties may agree to a proceeding with a
jury of less than twelve under Rule 23(b) in a situation like
that of Vega, they may not agree to receiving a non-
unanimous verdict. Fed. R. Crim. P. 31; Lopez, 581 F.2d at
1340. The First Preliminary Draft of Rule 31 did provide “that
a waiver of jury unanimity could be made in the same manner
as a waiver of jury trial or of a jury of twelve may be made
under present [R]ule 23(a) or (b).”4 Lopez, 581 F.2d at 1341.
The waiver provision was criticized as not giving sufficient
protection to the defendant, however, and “was deleted from
the next preliminary draft of [R]ule 31 and from the [R]ule as
enacted.” Id. at 1341 & n.1. In applying Rule 31 to cases in
which the parties attempted to avoid a mistrial by agreeing to
waive jury unanimity, courts have distinguished situations
like that of Vega in which all remaining jurors voted unani-
mously after one or more jurors were dismissed. That distinc-
tion applies to this case as well.

   In Lopez, after the jury had informed the court three times
that it was deadlocked and the court told the parties that it
intended to discharge the jury, defense counsel informed the
court that he wished to waive the right to a unanimous verdict
and that the vote of ten jurors would be acceptable. 581 F.2d
at 1340. A jury poll following the guilty verdict revealed that
the defendant was found guilty by a vote of ten to two. Id.
This court reversed the conviction, holding that the right to a
unanimous verdict cannot be waived. Id.

  Rejecting the government’s argument that the defendant
had simply agreed to accept a unanimous verdict of a ten-
person jury, we distinguished Vega on the grounds that
“[d]efense counsel offered ‘to waive our right to a unanimous
verdict.’ The jury remained as a body of twelve throughout its
  4
    As the Lopez court noted, “Rule 29(a) of the First Preliminary Draft
(1943) provided in pertinent part: ‘A verdict shall be unanimous, but upon
written stipulation of the parties approved by the court it may be by a
stated majority of the jurors.’ (emphasis supplied).” 581 F.2d at 1341 n.1.
                   UNITED STATES v. MURPHY                 4405
deliberations and returned a verdict of ‘ten guilty and two not
guilty’ to each of the counts charged.” Id. at 1342; see United
States v. Pachay, 711 F.2d 488 (2d Cir. 1983) (reversing a
conviction rendered “on an 11 to 1 basis,” following defen-
dant’s waiver of his “right to have a unanimous verdict of 12
jurors,” and distinguishing Vega on the grounds that in
Pachay, “the jury that returned the verdict was not a jury of
11 that deliberated as a group of 11 and returned a unanimous
verdict, it was a jury of 12 that returned a non-unanimous ver-
dict.”); United States v. Scalzitti, 578 F.2d 507, 511-13 (3d
Cir. 1978) (reversing a guilty verdict returned upon a vote of
eleven to one, distinguishing the case from Vega because all
twelve jurors participated in the deliberations at all times,
voted on all counts, returned the verdicts, and were polled
afterwards); see also United States v. Smedes, 760 F.2d 109,
112-13 (6th Cir. 1985) (focusing on “whether the verdict
below was the unanimous verdict of an 11 person jury or the
non-unanimous verdict of a 12 person jury,” and concluding
based on Vega, Scalzitti and Pachay that the jury verdict was
not unanimous because the jury remained a body of twelve
throughout its deliberations, and the jury was never required
to reach a verdict in which all deliberating members con-
curred).

   [4] Murphy’s stipulation in this case did not amount to a
waiver of jury unanimity, but rather fit squarely within the
framework of Rule 23(b). See Vega, 477 F.2d at 701. In
United States v. Reyes, 603 F.2d 69 (9th Cir. 1979), our court
recognized the risk to the defendant of stipulating to a jury of
less than twelve and noted that the rules provided for such a
strategic gamble. Although we held that the oral stipulation in
that case was not sufficient to waive the right to a jury of
twelve, we explained that “[w]e do not intimate that a trial
judge must explain to the defendant the strategic ramifications
of the decision whether to accept a jury of less than twelve.
Rather, his role should be to determine that the defendant
knowingly and intelligently consents to the stipulation.” Id. at
71-72, 72; see also United States v. Josefik, 753 F.2d 585, 588
4406                    UNITED STATES v. MURPHY
(7th Cir. 1985) (“If the defendant would prefer to take his
chances with the jury in its reconstituted form rather than
undergo the expense and uncertainty of a new trial, why
should he not be allowed to?”).

   In the present case, Murphy never attempted to waive his
right to a unanimous verdict, nor did the court understand his
stipulation as such an attempt. Cf. Smedes, 760 F.2d at 113.
Neither did Murphy in fact waive unanimity; unlike in Lopez,
Scalzitti, Smedes and Pachay, here the verdict was returned
by a unanimous jury of eleven. See Vega, 447 F.2d at 700-01.

   [5] It is significant that the dismissal of the juror here was
based upon a stipulation of the parties, under Rule
23(b)(2)(A). Without a stipulation of the parties, the court
may excuse a juror on its own under other provisions of Rule
23, in particular subsections (b)(2)(B) or (b)(3),5 but it can do
so only for “good cause.” We have held that “good cause” for
dismissal of a juror cannot be based on the juror’s views on
the merits of the case, and that when there is “considerable
evidence to suggest that the other jurors’ frustrations with her
derived primarily from the fact that she held a position oppo-
site to theirs on the merits of the case,” dismissal of that juror
cannot be sustained as being for “good cause.” United States
v. Symington, 195 F.3d 1080, 1085-88, 1088 (9th Cir. 1999).
In contrast, there is no “good cause” requirement where the
parties themselves stipulate to proceed with eleven jurors,
under Rule 23(b)(2)(A), as in this case. Such a requirement
was clearly left out of Rule 23(b)(2)(A) by its drafters, and it
is not appropriate for us to add it. Symington does not apply
   5
     Rule 23(b)(2)(B) states: “At any time before the verdict, the parties
may, with the court’s approval, stipulate in writing that: . . . a jury of fewer
than 12 persons may return a verdict if the court finds it necessary to
excuse a juror for good cause after the trial begins.” Rule 23(b)(3) pro-
vides 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.”
                    UNITED STATES v. MURPHY                 4407
here. The district court did not err in denying the motion for
a new trial.

III.   Conclusion

   We find no error in the district court’s denial of a new trial
here, where the parties stipulated to proceeding with a jury of
less than twelve and received a unanimous verdict, albeit from
a jury of only eleven members. That it was subsequently
revealed that the juror was a holdout in favor of acquittal does
not change that. On the advice of counsel, Murphy made a
decision which did not turn out as he had hoped, but it was
one that he was free to make and be held to under the Federal
Rules of Criminal Procedure. Accordingly, we affirm his con-
viction.

  AFFIRMED.



GIBSON, Circuit Judge, dissenting:

   I respectfully dissent and conclude that the proper course is
to reverse the conviction and remand for a new trial. When
the three notes the jury submitted to the district court during
its deliberations are read together, I am convinced that they
demonstrate a reasonable possibility that the holdout juror
entertained doubts about the merits of the government’s case.
Her dismissal thus violated Murphy’s non-waivable Sixth
Amendment right to a unanimous verdict.

   While I recognize that our review is for abuse of discretion,
we also have held that “[t]he district court’s discretion in this
area is not unbounded.” United States v. Symington 195 F.3d
1080, 1085 (9th Cir. 1999). Indeed, “a court may not dismiss
a juror during deliberations if the request for discharge stems
from doubts the juror harbors about the sufficiency of the evi-
dence.” Id. (quoting United States v. Brown, 823 F.2d 591,
4408               UNITED STATES v. MURPHY
596 (D.C. Cir. 1987)). Symington reasoned that removing a
juror “because he is unpersuaded by the Government’s case
is to deny the defendant his right to a unanimous verdict.” Id.
(quoting United States v. Thomas, 116 F.3d 606, 621 (2d Cir.
1997)). If a court could discharge a juror on this basis, “then
the right to a unanimous verdict would be illusory.” Brown,
823 F.2d at 596; see also Sanders v. Lamarque, 357 F.3d 943
(9th Cir. 2004) (habeas relief affirmed on same theory where
state trial court had dismissed the only juror who was holding
out in favor of acquittal). The right to a unanimous verdict is
so important that, under Federal Rule of Criminal Procedure
31, it cannot be waived. United States v. Lopez, 581 F.2d
1338, 1340 (9th Cir. 1978).

   I conclude that the three notes from Murphy’s jury demon-
strate that this case falls within the prohibition in Symington
that, “if the record evidence discloses any reasonable possi-
bility that the impetus for a juror’s dismissal stems from the
juror’s views on the merits of the case, the court must not dis-
miss the juror.” 195 F.3d at 1087. By referring to “a dissent-
ing point of view with one juror,” the first note raises an
inference that one juror had an opinion on the merits of the
case that was contrary to the other eleven jurors’ view. In its
second note, after its members had been re-instructed, the jury
asked to review part of the evidence, indicating an attempt to
continue deliberations. An 11-1 split was all but confirmed
the next morning when the third jury note came, stating that
one juror was “not willing to deliberate,” “not open to any
additional information,” with an “opinion” that was “firm”
and would not change, but also stating that the jury was
“working on it.” Viewed in isolation, the third note could sug-
gest that the holdout was uncooperative in the deliberative
process. The parties thought so at the time, as their stipulation
agreed to dismissal “of the one juror who is not deliberating.”
Ordinarily, this refusal would provide good cause for dis-
missal. Perez v. Marshall, 119 F.3d 1422, 1427 (9th Cir.
1997). Taken together, however, the notes certainly demon-
strate that the dismissed juror had an opinion on the case that
                    UNITED STATES v. MURPHY                  4409
differed from all the other jurors’ view. The record does not
allow us to determine whether she actually refused to deliber-
ate or whether her frustrated fellow jurors merely thought she
was refusing. See Symington, 195 F.3d at 1086-87. Under
these circumstances, I conclude that the notes disclosed a rea-
sonable possibility that the removal of the holdout juror
stemmed from her views on the merits of the case in violation
of Murphy’s right to a unanimous verdict.

   The court today concludes that Symington has no bearing
on this case because the juror was dismissed by the parties’
stipulation under Federal Rule of Criminal Procedure
23(b)(2)(A), rather than for good cause under Rule
23(b)(2)(B) or (b)(3). First, I observe that neither the stipula-
tion itself nor the parties’ oral statements to the district court
specified which subsection of Rule 23(b) authorized the
juror’s removal. In any event, the court’s distinction misses
the mark because the plain language of Rule 23(b)(2)(A) only
authorizes the parties to stipulate—subject to the court’s
approval—that “the jury may consist of fewer than 12 per-
sons”; it does not give them free rein to agree among them-
selves that a specific juror will be removed. The decision to
remove a juror is for the district court, which must find “good
cause” for dismissal, under the plain language of Rule
23(b)(2)(B) or (b)(3). Moreover, even if Rule 23 allows par-
ties to agree to remove a juror without “good cause,” Rule 31
prohibits a defendant from waiving his right to have his guilt
determined by a unanimous jury verdict. See Lopez, 581 F.2d
at 1340. Where there is a reasonable possibility that the dis-
missal of a juror stemmed from her views on the merits of the
case, this amounts to a violation of the unanimity require-
ment, Symington, 195 F.3d at 1085, and Rule 31 invalidates
the remaining jurors’ verdict.

  The court points out that a defendant is free to agree to a
unanimous verdict of a jury of eleven, likening this case to
United States v. Vega, 447 F.2d 698 (2d Cir. 1971). I am
unable to agree that Murphy’s stipulation “to the removal of
4410              UNITED STATES v. MURPHY
the one juror who is not deliberating” was such an agreement.
In Vega, the record unambiguously showed that the defendant
was “unwilling to accept less than a unanimous verdict,” id.
at 701, where the defendant agreed to the dismissal of the
“primary hold-out” juror on the advice of experienced counsel
who expressly insisted upon a unanimous verdict by a jury of
eleven. Id. at 698-99. Here, neither the court nor Murphy’s
counsel, who both remarked that they had never before pro-
ceeded this way, even mentioned Murphy’s non-waivable
right to a unanimous verdict. More fundamentally, whether or
not a defendant has experienced counsel who formally
invokes the right to a unanimous verdict when he agrees to
dismiss a juror who is holding out on the merits of the case,
that agreement achieves the same result that a prohibited
waiver of unanimity would achieve. To the extent the Second
Circuit’s approach in Vega holds otherwise, it is inconsistent
with the unanimity requirement of Rule 31 as construed by
this circuit in Symington.

   I believe that Rule 31 precluded Murphy from acceding to
a reduction in jury size to remove the holdout juror where
there was a reasonable possibility that she was holding out on
the merits of the case. Thus, I dissent.
