concurring in the result:
I concur in the result reached by the majority because there is insufficient evidence in the record to show that Freddy Pachay knowingly and intelligently waived his right to a unanimous jury verdict. Relying on Rule 31(a) of the Federal Rules of Criminal Procedure, which provides that the verdict in federal criminal trials shall be unanimous, the majority concludes “that a conviction obtained after a purported waiver of jury unanimity must be set aside.” I disagree. I do not believe that Rule 31(a) does anything more than restate a defendant’s right to a unanimous verdict and protect that right from interference by the trial judge. I cannot agree that a violation of Rule 31(a) requires reversal in the absence of prejudice.
The accused in a federal criminal trial undeniably enjoys the constitutional right to a trial by jury. U.S. Const, art. Ill, § 2, cl. 3 (“The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury .... ”), amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury .... ”). Although the Constitution nowhere defines the essential elements of a trial by jury, it incorporates the common law requirements:
(1) [T]hat the jury should consist of twelve men, neither more nor less; (2) that the trial should be in the presence and under the superintendence of a judge having power to instruct them as to the law and advise them in respect of the facts; and (3) that the verdict should be unanimous.
Patton v. United States, 281 U.S. 276, 288, 50 S.Ct. 253, 254, 74 L.Ed. 854 (1930). The essential element of unanimity of verdict is inextricably rooted in our jurisprudence, Apodaca v. Oregon, 406 U.S. 404, 407-10, 92 S.Ct. 1628, 1631-32, 32 L.Ed.2d 184 (1972), and remains “one of the indispensable features of federal jury trial,” Johnson v. Louisiana, 406 U.S. 356, 369, 92 S.Ct. 1620,1637, 32 L.Ed.2d 152 (1972) (Powell, J., concurring in the judgment); see Andres v. United States, 333 U.S. 740, 748, 68 S.Ct. 880, 884, 92 L.Ed. 1055 (1948). Rule 31(a) of the Federal Rules of Criminal Procedure reflects this truth, providing plainly: “The verdict shall be unanimous.”
The Supreme Court has never considered whether a criminal defendant can constitutionally waive the requirement of a unanimous verdict, except to hold that unanimity is not required in state criminal trials. Apodaca v. Oregon, 406 U.S. at 406, 92 S.Ct. at 1630; Johnson v. Louisiana, 406 U.S. at 362-63, 92 S.Ct. at 1624-25; but see Burch v. Louisiana, 441 U.S. 130, 139, 99 S.Ct. 1623, 1628, 60 L.Ed.2d 96 (1979) (nonunani-mous verdict of six person jury violates constitutional right to trial by jury). The Court has held, however, that the remaining two essential elements of trial by jury can be waived — the parties may consent to a jury of less than twelve persons and, of course, the defendant can forego his right to a trial by pleading guilty. See Duncan v. Louisiana, 391 U.S. 145, 158, 88 S.Ct. 1444, 1452, 20 L.Ed.2d 491 (1968) (“we hold no constitutional doubts about the practices, common in both federal and state courts, of accepting waivers of jury trial”); Patton v. United States, 281 U.S. 276, 299, 50 S.Ct. 253, 258, 74 L.Ed. 854 (1930) (“court has authority in the exercise of a sound discretion to accept the waiver, and, as a necessary corollary, to proceed to the trial and determination of the case with a reduced number or without a jury”). In Patton v. United States, the Supreme Court considered whether the reduction of a jury from twelve to eleven persons with the consent of the parties offended the constitutional guarantee of trial by jury. The Court framed the inquiry as follows:
Is the effect of the constitutional provisions in respect of trial by jury to establish a tribunal as a part of the frame of government, or only to guarantee to the accused the right to such a trial?
281 U.S. at 293,50 S.Ct. at 256. The history of the jury, its English and colonial antecedents, and the pertinent provisions of the Constitution convinced the Court that,
*495Article III, Section 2, is not jurisdictional, but was meant to confer a right upon the accused which he may forego at his election. To deny his power to do so, is to convert a privilege into an imperative requirement.
Id. at 298, 50 S.Ct. at 258. Although the Court upheld the defendant’s waiver of his right to a jury of twelve men, it recognized that the important public interest in preserving the jury as the regular form of factfinding in criminal trials required the consent of the government and the court before a waiver could be effective. Id. at 312, 50 S.Ct. at 263.
If a defendant is able to waive his right to a trial by jury without offending the Constitution, I am hard pressed to find any basis for precluding him from waiving the requirement of a unanimous verdict. Under Patton, if unanimity is a right conferred on the defendant, as opposed to an element of the court’s jurisdiction, a necessary corollary of that right is the defendant’s freedom to waive a unanimous verdict, subject, of course, to the consent of the government and the court. Although the issue in Patton was the size of the jury rather than the form of its verdict, the same result should obtain. The requirement of unanimity is incidental to the constitutionally guaranteed right of trial by jury. I find no suggestion in the Constitution or the ease law that the jurisdiction of a federal criminal court to impose sentence is contingent on a unanimous jury verdict. As the Court observed in Patton: “public policy is not so inconsistent as to permit the accused to dispense with every form of trial by a plea of guilty, and yet forbid him to dispense with a particular form of trial by consent.” Id. at 306, 50 S.Ct. at 261.
The constitutional requirement of unanimity of verdict was undoubtedly intended to confer a right on the defendant. Although a defendant is not entitled to insist on a nonunanimous verdict, Singer v. United States, 380 U.S. 24, 34-36, 85 S.Ct. 783, 789-790,13 L.Ed.2d 630 (1965); see Gannett Co. v. DePasquale County Court, 443 U.S. 368, 382, 99 S.Ct. 2898, 2907, 61 L.Ed.2d 608 (1979), and the Congress retains the right to promulgate “reasonable procedural regulations” governing the form of a waiver, Singer v. United States, 380 U.S. at 35, 85 S.Ct. at 790. I do not believe a trial judge is without power to accept a defendant’s knowing and intelligent waiver of his right to a unanimous verdict. Constitutional rights are guarantees, privileges secured to the individual, not directives of the sovereign mandating what is in the best interests of that individual. As such, those rights can usually be waived at the instance of the defendant. Likewise, the right to a unanimous verdict is a restraint on the government; it is not a restraint on the accused.
The majority construes Rule 31(a) as precluding waiver of unanimity in federal criminal trials, but leaves open in footnote 4 the question of whether a waiver obtained in violation of the Rule can ever be given effect. In support, the majority relies upon the decisions of three sister courts of appeals and upon the history of the Rule which indicates that its drafters rejected a provision for waiver. The Third and Ninth Circuits have focused on the institutional role of the jury and have concluded that unanimity is necessary to ensure that the views of each juror are considered and evaluated. United States v. Lopez, 581 F.2d 1338, 1341 (9th Cir.1978); United States v. Scalzitti, 578 F.2d 507, 512 (3d Cir.1978). However, there is no constitutional requirement that a verdict embody the views of all members of the community, Apodaca v. Oregon, 406 U.S. at 413, 92 S.Ct. at 1634, and unanimity is not essential to establish guilt beyond a reasonable doubt in state court, Johnson v. Louisiana, 406 U.S. at 361-62, 92 S.Ct. at 1624-25. Because the essential character of the jury is retained despite a nonunanimous verdict, I see no constitutional impediment to a defendant’s waiver of unanimity.
Moreover, I am not convinced that Rule 31(a) was intended to prevent a defendant from voluntarily waiving his right to a unanimous verdict. Cf. Schick v. United States, 195 U.S. 65, 72, 24 S.Ct. 826, 828, 49 L.Ed. 99 (1904) (“When there is no constitu*496tional or statutory mandate, and no public policy prohibiting, an accused may waive any privilege which he is given the right to enjoy.”), quoted in Patton v. United States, 281 U.S. at 310, 50 S.Ct. at 262. As the majority explains, the history of Rule 31(a) reveals the drafters’ intent to preserve the fundamental right of a defendant to a unanimous verdict. Fed.R.Crim.P. 31(a) advisory committee note (“This rule is a restatement of existing law and practice.”); see generally Patton v. United States, 281 U.S. at 288, 50 S.Ct. at 254 (constitutional right to trial by jury includes right to a unanimous verdict). A principal concern of the drafters was the potential for coercion in the event a trial judge, for whatever reason, suggested or recommended to a defendant that he waive his right to a unanimous jury verdict. In such a case, the defendant may feel pressured to accede to the judge’s advice for fear of a harsh sentence if he refused to waive and was later convicted by a unanimous jury. See Hib-don v. United States, 204 F.2d 834, 839 (6th Cir.1953). Thus, Rule 31(a) was designed, at least in part, to prevent coerced or unwitting waivers of unanimity. Accordingly, the concerns underlying Rule 31(a) are not implicated when it is the defendant who affirmatively offers a knowing and intelligent waiver.
Rule 31(a) restates a defendant’s right to a unanimous verdict and protects that right from interference by the trial judge. Although hung juries usually lean toward a verdict of guilty, see Johnson v. Louisiana, 406 U.S. 356, 390-91,92 S.Ct. 1620,1648-49, 32 L.Ed.2d 152 (1972) (Douglas, J., dissenting), it is not our job to question whether it was in the best interest of the defendant to waive his right to unanimity. Our estimation of probabilities is no substitute for the reasoned judgment of the defendant and his counsel. See United States v. Curdo, 694 F.2d 14, 25 (2d Cir.1982) (“To be sure, the defendants’ choice of joint representation, like that of self-representation, may sometimes seem woefully foolish to the judge. But ... the choice is mainly theirs .... ”); United States v. Vega, 447 F.2d 698, 701 (2d Cir.1971), cert. denied, 404 U.S. 1038, 92 S.Ct. 712, 30 L.Ed.2d 730 (1972) (no error where “[defendant and his counsel 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 ‘gamble.’ ”). We serve no person’s interest when we construe a protected right in a way that severely restricts the very liberty which the Constitution was designed to secure.
Having said all this, I do not quarrel with the majority’s conclusion that Rule 31(a) was violated in this case. The prohibition of Rule 31(a) was called into play because it was the trial judge who suggested that Pachay should consider waiving his right to a unanimous verdict. At a most critical point in the jury’s deliberations — Friday, 6:15 p.m., with “[a] difference of opinion of a single juror” preventing unanimity — the trial judge brought to bear on Pachay the possibility of coercion and undue pressure that Rule 31(a) was designed to prevent.
Yet, I do not believe, as does the majority, that reversal is automatically required. As I explained earlier, I do not read Rule 31(a) to prohibit a knowing and intelligent waiver by a defendant of his right to a unanimous verdict. The objective of the Rule is more pointed — to prohibit interference with a defendant’s right to a unanimous verdict. Therefore, I would affirm a nonunanimous verdict of guilty despite a violation of Rule 31(a) where there is no evidence to suggest that the defendant was prejudiced. In United States v. Hillard, 701 F.2d 1052 (2d Cir.1983), cert, denied, — U.S. —, 103 S.Ct. 2431, 77 L.Ed.2d 1318 (1983), we held that violation of Rule 24(c), which precludes the substitution of jurors after deliberations have begun, does not require reversal absent a showing of prejudice. In the circumstances of that case, reversal was unnecessary because the evils that Rule 24(c) was designed to prevent were eliminated by evidence that the excused juror was unable to continue due to illness and by the absence of any evidence that the substitute juror had been coerced by the remaining members of the jury. Id. at 1059. The majority distin*497guishes Hillard on the ground that “there can be no satisfactory assurance that he [Pachay] did not accede to the Judge’s suggestion, at least in part, to avoid incurring the displeasure of the person who might soon be sentencing him.” The plain truth is that Pachay has not to this day asserted that his waiver was coerced or influenced by the trial judge. Pachay did not move to vacate his sentence as did the defendant in Hibdon v. United States, 204 F.2d 834, 836 (6th Cir.1953), or move for a new trial pursuant to Rule 33 as did the defendant in United States v. Scalzitti, 578 F.2d 507, 510 (3d Cir.1978). At no point prior to, during, or after his waiver did Pachay protest the trial judge’s actions. Even Pachay’s brief on appeal lacks a specific assertion that he was unduly influenced or pressured by the trial judge. There is simply no indication in the record that Pachay was prejudiced by the evil that Rule 31(a) was designed to prevent and I am not inclined to entertain Pachay’s argument, made for the first time on appeal, that he was coerced into forfeiting his right to a unanimous jury verdict. See Government Of the Virgin Islands v. Parrott, 476 F.2d 1058, 1061-62 (3d Cir. 1973), cert. denied, 414 U.S. 871, 94 S.Ct. 97, 38 L.Ed.2d 90 (1973).
Nevertheless, the conviction must be reversed because the record does not indicate a knowing and voluntary waiver by Pachay of his right to a unanimous verdict. As the majority recognizes in footnote 3, the trial judge accepted Pachay’s waiver without any assurance that Pachay understood the alternatives available to him. The trial judge should not accept a waiver of a right as fundamental as the right to a unanimous verdict without adequate assurance that the defendant’s decision was voluntary and made with full awareness of the alternatives to and consequences of the waiver. While I would permit a defendant to waive his right to a unanimous verdict, I would require strict adherence to the precautions detailed by the Supreme Court in Patton v. United States:
Trial by jury is the normal and, with occasional exceptions, the preferable mode of disposing of issues of fact in criminal cases above the grade of petty offenses. In such cases the value and appropriateness of jury trial have been established by long experience, and are not now to be denied. Not only must the right of the accused to a trial by a constitutional jury be jealously preserved, but the maintenance of the jury as a fact finding body in criminal cases is of such importance and has such a place in our traditions, that, before any waiver can become effective, the consent of the government counsel and the sanction of the court must be had, in addition to the express and intelligent consent of the defendant. And the duty of the trial court in that regard is not to be discharged as a mere matter of rote, but with sound and advised discretion, with an eye to avoid unreasonable or undue departures from that mode of trial or from any of the essential elements thereof, and with a caution increasing in degree as the offenses dealt with increase in gravity.
281 U.S. at 312-13, 50 S.Ct. at 263.