UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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