dissenting:
The majority in this case would grant a mistrial because the verdict in this case *847was reached by an eleven-member jury. My colleagues would reach this result despite the fact that in open court the appellant deliberately and advisedly waived her right to a twelve-member jury, and despite the fact that the appellant’s attorney never raised to the trial court the issue now considered dispositive here by the majority sua sponte. With a deliberate waiver by a stipulation on which the trial court relied, no visible prejudice, no opportunity for the court to act on the issue now discovered to be important, I fail to see any justification whatsoever for reversing the conviction.1
I. Facts
The jurors for appellant’s trial had been seated and sworn when appellant’s counsel observed on the panel a juror he had stricken.2 Appellant’s counsel drew this fact to the court’s attention. At this time, however, only one alternate had been chosen and the remaining members of the venire had been released. The court and counsel for both sides discussed the dilemma:
MR. GOODBREAD [DEFENSE COUNSEL]: Your honor, may we be heard on the matter of the jury? ... One juror in the box is one the defense has stricken.
We feel strongly enough about that strike to ask that he be removed from the panel in whatever way the court deems fit in order to proceed with the trial. May we suggest replacing him with the alternate?
THE COURT: That leave us with no alternates. Let me ask you this. Is it agreeable to you — if we should have a problem with some juror becoming ill or being unable to proceed — to have less than a twelve-member jury?
MR. GOODBREAD: The defense would have no objection to that, Your Honor.
THE COURT: Very well.3
The government initially objected to this solution. After a colloquy with the court, however, the government agreed to the defendant’s proposal.
MR. O’MALLEY [GOVERNMENT COUNSEL]: It is agreeable to the government, your honor, but this is an issue which, as the court well knows, has been litigated many times.
If we could have a formal waiver from Miss Essex, that is, to indicate that she has been advised that she has an absolute right to have twelve jurors and that if she waives it she waives any right to appeal that issue, and she must be satisfied with a verdict of eleven.
THE COURT: Do you .understand, Miss Essex, that you are entitled to a jury of twelve and you would certainly have it if we had it. At the moment you are going to have twelve.
I am just saying that in the event something should happen to one of them, we don’t have any alternates.
THE DEFENDANT: Yes, Ma’am.
THE COURT: So if something should happen to one, we would proceed with eleven.
Is that your understanding and do you agree to that?
THE DEFENDANT: Yes, Ma’am, I do.4
The case then proceeded to trial. After all the evidence had been introduced, the judge charged the jurors and excused them for deliberation. The jurors failed to reach a verdict on their first day of deliberations, *848a Friday. They were instructed to return the following Monday.
On Monday one of the jurors failed to appear. The judge’s secretary contacted Essex’s attorney and informed him of the situation. He also was told that the judge intended to proceed with only eleven jurors, in accordance with the stipulation. According to Essex’s brief, her attorney objected vehemently to proceeding with eleven jurors, but said nothing about showing “just cause” for excusing the absent juror:
[Essex’s counsel said] what defendant had agreed to was to proceed to trial, if necessary, with eleven jurors. That turned out not to be necessary, since the case had been heard for two days by twelve jurors, all of whom had retired and invested nearly two hours of deliberation in the case. Counsel expressed opposition to the proceeding with eleven jurors under these changed and different circumstances, stating the opinion that the Government should be required to convince all of the jurors it had attempted to persuade (however many that may have been — twelve in this case, as usual) and that to allow the panel to be whittled away by exigencies and circumstances would geometrically lighten the Government's burden to achieve conviction by unanimity of those jurors who actually heard and deliberated the case. Counsel further expressed the opinion that the agreement concerning and the matter of the alternate juror was academic and moot at that point, since the alternate juror would have been excused before the jury had retired to begin its deliberations anyway, and would have had no part to play had a juror failed to appear to resume deliberations. On those grounds, Counsel objected to proceeding with only eleven jurors after deliberations had begun.5
Essex’s attorney was forceful enough in his objections to cause the judge to be summoned away from proceedings then underway in open court. Essex’s brief also recounts in detail her attorney's discussion with the judge:
In counsel’s subsequent conversation with [the judge], he repeated the foregoing contentions and expressed further opposition to the case proceeding without the twelfth juror present. [The judge] took the position at that point, however, that Counsel and defendant had earlier agreed on the record to proceed with only eleven jurors. When informed of Counsel’s distinction between an earlier stated agreement to proceed to trial (if proven necessary) with eleven jurors and a subsequent requested agreement to allow only eleven of the twelve who had then heard the case to then decide it (not proven necessary), [The judge] expressed the opinion that there was no difference in the fact situations. Stating that she did not know any other way to proceed, [the judge] then informed counsel that she would allow the eleven jurors to proceed with deliberating the case.6
The jury returned a verdict of guilty.7 Essex’s counsel moved for a mistrial and a new trial. He advanced essentially the same arguments as those he had to the judge earlier; once again, in both his statements before the court and in the subsequent memorandum filed in support of the motion, nothing was said about “just cause.”8
The judge took the motions under advisement, and ultimately denied both.9 Essex was sentenced to a period of incarceration not to exceed three years.10 This appeal followed.
*849II. Analysis
A. Duration of Waiver
In the proceedings before the lower court, Essex advanced a single argument in favor of her motion for a mistrial: that the waiver ceased to be operative when the evidence-taking phase of the trial ended.11 The majority has correctly disposed of this claim,12 and it need not detain us here.
B. Dismissal of Juror for “Just Cause”
Essex has advanced a second argument — for the first time — on appeal. Essex merely hinted at this rationale in her appellate brief,13 but it was advanced more directly at oral argument. The very late introduction of this totally different rationale obviously hampered the ability of the government to refute it factually or analytically. This argument holds that the waiver applied only if the judge found that a juror’s absence was warranted by just cause. Essex argues that a mistrial should be declared since the trial judge (never having the issue raised) made no formal finding on the just cause issue. The majority rests its entire holding on this afterthought, footnote argument.
All parties agree that the judge made no finding on the record as to just cause. The record does not even indicate whether the judge ever inquired as to why the juror was absent. From all the record shows, the absent juror might have been dead, asleep, hospitalized, incarcerated, coerced by an employer, or bored with the trial. Some of these possible reasons would make the juror’s absence unavoidable; others would not.
As a matter of good practice, the judge should establish why the juror was absent. A simple, check would help the court ensure that the absence was not caused by intimidation by one of the parties, by an employer or by other jurors. Such an inquiry would protect the court’s own interest in preserving the sanctity of the jury proceedings. The record before us does not tell whether such an inquiry ever was made.
The silence of the record should not be overstated, however.14 It would be a mistake to assume that the juror simply chose not to appear; similarly, it would be an error to assume that the judge did not establish to her own satisfaction that she had just cause for dismissing the juror. Since all we know is that the record is silent, our inquiry should be limited to deciding whether the absence of record findings as to the cause of the juror’s absence constitutes reversible error.
*850Faced with an incomplete record, the majority proceeds to read into that record facts which would alter the profile of the case. See, e.g., Maj.Op. at 834 (“The government admits that the defendant objected that it was ‘not proven necessary’ to continue without the juror and that the court overruled said objection”), (“Since there was no finding of any reason that it was ‘necessary’ to proceed with less than a full jury”); Id. at 836 (“The Government’s concession also admits appellant’s statement that counsel objected to the Court’s proceeding with only 11 jurors on the ground that the stipulation only agreed to 11 jurors ‘if necessary’ and ‘[t]hat turned out not to be necessary’ ”); Id. at 842 (“[T]he court treated the stipulation to waive a jury of 12, if necessary, as sufficient to waive a jury of 12 even if not necessary.”) Given the incomplete record, the majority does not and cannot know that its assertions are true.15
This court is not charged, moreover, with deciding abstract issues of how a trial judge should behave. This court must channel its inquiry through the accepted methods of raising legal issues. This normally requires the court to consider only those issues which were preserved by an objection below,16 although in certain extraordinary cases the court can act to correct plain error.17 The chief distinction between the majority and this dissent thus has little to do with whether the stipulation contained a hidden “condition.”18 It has to do with my reluctance to reverse this case on an issue that was never brought to the attention of the trial judge (because defense counsel never thought of it or relied on it), on an issue that was not briefed, and on a record that is far from clear.
1. Objection by Counsel
It is uncontested that Essex’s counsel did object to “accepting a verdict from eleven jurors.”19
*851The majority asserts that this objection raised to the court the “just cause” issue. The majority reasons that this objection was “broad enough to raise the issue that the court erred by failing to find ‘just cause.’ ”20 The majority claims, “The objection was to the substantial variance from normal jury procedure in criminal trials that the court indicated it proposed to follow....”21 The majority then proceeds to read into the trial judge’s action a response to the “just cause” issue. “In [overruling the defendant’s objections] the court treated the stipulation to waive a jury of 12, if necessary, as sufficient to waive a jury of 12 even if not necessary.”22 The majority also finds that the government conceded away the “just cause” issue when it conceded that there had been an objection to continuing trial with eleven jurors.23
I fail to find in the record any evidence that trial counsel raised the “just cause” issue in its objection to the trial court. To the contrary, all available evidence — including the record from trial, the factual assertions in the defendant’s own brief, and the arguments advanced in the defendant’s brief — indicate rather clearly that Essex’s trial counsel presented a very different argument to the trial judge. Nor does the government’s simple concession that Essex’s counsel objected to “accepting a verdict from eleven jurors” carry in its wake a concession concerning the “just cause” analysis advanced by the majority.
The objection actually raised by Essex’s counsel — and pursued on appeal — can be simply put: he objected that the stipulation applied only if a juror was dismissed during the taking of testimony (which he erroneously described as the “trial”) and not if a juror was excused during deliberations. He argued, in essence, that the stipulation was a substitute for the use of an alternate, and so expired of its own terms — never having been needed — when an alternate could no longer be used. Because the expired stipulation was inapplicable during deliberations, Essex’s attorney claimed, proceeding with only 11 jurors violated Essex’s right to a jury of 12.
That this was the argument — and the only argument — actually made by the defense can be readily demonstrated. On the record, before the jury returned, Essex’s attorney objected because, “It was not the defense’s understanding that we would agree to go forward with only 11 jurors during the deliberations.”24
In Essex’s attorney’s own recounting of his conversation with the trial judge’s secretary, he states, “Counsel further expressed the opinion that the agreement concerning and the matter of the alternate juror was academic and moot at that point, since the alternate juror would have been excused before the jury had retired to begin its deliberations anyway, and would have had no part to play had a juror failed to appear to resume deliberations.”25 Again, the argument is that the stipulation simply did not apply after deliberations began.
Another hint emerges from the arguments advanced by Essex’s attorney on appeal. If, as the majority suggests, the thrust of his objection was that the cause for the juror’s absence was not proved, it is at least very curious that he failed to address that issue directly in his appeal.
The issue he did address was whether the stipulation had expired at the end of testimony — the identical issue he had raised in his telephone conversation with the trial judge and in his later formal motion to the trial court. In his framing of the issue presented, Essex’s counsel asked this court to decide whether “trial court may accept a limited waiver of a twelve person jury during trial and ... transform *852and apply it as a waiver of a twelve person jury during deliberations....”26
In Section I of his brief, appellant argued that the “conceptual difference between ‘trial’ and ‘jury deliberations’ has been persuasively established,” and that the stipulation entered into by Essex did not apply at all during jury deliberations.27 In Section II of the same brief, it is argued that “[t]he underlying premise of the ‘waiver’ was that it was given within the context comprehended by that portion of the trial in which alternates could be used (i.e., prior to the time the jury retired.) It was not a waiver in a different set of circumstances in which alternates would not be allowed (i.e., during deliberations). Indeed, the trial court’s entire inquiry and instruction was couched in terms of the unavailability of alternates.” 28 In Section III, Essex’s counsel argues that the waiver was inapplicable after deliberations began because an alternate could not have been added to the jury.29 In Section IV, the defendant’s brief again asserted that Essex had never given “express permission and stipulation to the return of a verdict by fewer than the total number of jurors who retired to deliberate....”30
The argument actually expressed at trial and on appeal by Essex’s counsel is clear: the stipulation was inapplicable because it expired altogether when the jury retired to deliberate.31 Essex argues that she was, in effect, in the same position as someone who never had entered into a stipulation at all: no deviation from the standard requirement of a unanimous, 12 person jury could be taken without a new waiver.32 The majority has rejected this argument,33 and I certainly agree.
Although Essex’s counsel stood by this interpretation of the waiver in his briefs and at oral argument, the majority would credit him with a totally different objection: that the stipulation did apply, that it did continue in force after the jury retired to deliberate, but that the judge failed to satisfy the terms of that stipulation. While the majority finds its interpretation to be the “substance” of Essex’s objection, the arguments are not only radically different but also inconsistent. Essex’s counsel argued that the stipulation had ceased to be effective well before the missing juror failed to appear; the majority argues that the stipulation was still effec*853tive but not adequately satisfied. Under the argument advanced by Essex, establishing that the juror was excused for “just cause” would not avert a mistrial since there was no valid stipulation; under the majority’s interpretation, establishing “just cause” on the record for discharging the juror would satisfy the implicit condition and allow trial to continue under the stipulation. Under the argument advanced by Essex, the proper course of action would not require consideration of why the juror was absent, because regardless of the cause of his absence a mistrial was required absent a new stipulation; under the argument advanced by the majority, establishing the cause for the juror’s absence is the crux of the case.
Since the two courses of action requested of the judge are fundamentally inconsistent, it is not fair to say raising one argument also raises the other.34 Once the judge had decided that the stipulation was still applicable, she had answered the objection raised by Essex. With regard to the objection raised by the majority, the judges were no more on notice than if no objection at all had been raised.
2. Plain Error
Essex’s failure to make an objection could be overcome if the judge’s action constituted plain error.35 Although the majority asserts that the trial judge committed plain error, it fails to support its conclusion with reasoned analysis.
a. The Just Cause Inquiry
First, it is not altogether clear that the judge would have committed error by simply finding the juror’s absence alone just cause for dismissal. The court is handicapped in determining what would have constituted just cause for the juror’s dismissal since this issue was neither briefed nor raised at oral argument. The government never had a chance to argue whether the present record is sufficient to support a finding that just cause did, in fact, exist to support the absent juror’s dismissal.
The failure of the court to hear argument on this issue matters because it is at least arguable that the present record shows that just cause existed for the juror’s dismissal. Under the rule governing stipulations to proceed with less than twelve jurors36 — contrary to some suggestions in the majority’s opinion — a judge assessing just cause is not a truant officer determining whether the juror has a good excuse for not appearing. A juror can, of course, be required to justify his absence, and the judge can impose sanctions on .those jurors who fail to discharge their duties properly.37 But, this case does not present the issue of whether the judge should have punished the missing juror.
The just cause issue faced by the trial judge in this case raises quite a different question — under what circumstances the parties to a stipulation can rely on that *854stipulation, and continue trial without a member of the original jury panel.
The majority asserts that juror’s absence must be “justifiable,”38 an issue which, as shown above, the government never had the opportunity to meet. The majority’s reasoning leads to the consequence that if a juror’s absence was for a “bad” cause, the rule forbids the court to excuse the juror. Trial must be continued with the juror, or not at all. For all practical purposes, this means that stipulations are useless nullities.39
The majority’s approach to just cause contains at least two critical flaws. First, it promises to transform a rule that was designed to avoid mistrials into a fertile and treacherous source of mistrials. If the court — with the unwitting acquiescence of the parties — continues trial after a juror “unjustifiably” fails to appear, the appellate court must set aside the verdict. Secondly, it flies in the face of the case law. Judges have excused jurors for such unjustifiable reasons as sleeping through a part of the trial,40 or simply disappearing after a break in the proceedings.41
The majority’s approach would undercut the purpose served by stipulations — allowing parties to know that trial can continue despite the absence of a member of the original jury panel. A more sensible approach would be to allow judges and parties to rely on stipulations and dismiss a juror whenever the needs of the court would be served by proceeding under a stipulation.42 Stipulations are intended to avoid controversy, and to reduce the necessary labors of court and counsel. The *855judge knew she had a stipulation with counsel, in the record, accompanied by interrogation of the defendant herself, and— faced with a choice between two undesirable prospects, delay of trial or proceeding with one less juror — the court properly should have relied on the defendant’s stipulation, and so she did. Doing so was merely giving the defendant the benefit of her bargain.43
b. The “Error” of Failing to Find Just Cause
The majority opinion ultimately cannot rest on a refusal or failure by the trial judge to establish “just cause.” The record shows only no record finding was made.44 An opinion properly limited to the record must turn on whether the failure to make a record finding by itself constitutes error.45
The majority takes an audacious step in arguing that silence of the record alone constitutes error. The right at stake here is not constitutional, nor is it statutory. It is a right created by a federal rule of procedure.46 Yet, the majority holds that this rule-created right is so momentous that the court’s failure to show affirmative*856ly that it was not violated is by itself reversible error of the most plain and egregious kind. This is jurisprudence at its pettifogging and hypertechnical worst. This style of reasoning went out of fashion with the Year Books.
The implications of the majority’s reasoning are staggering. Since the “substantial rights” identified by the majority appear to derive solely from the Rules of Criminal Procedure, it must be assumed that similar “substantial rights” lurk in other federal rules. Under today’s ruling, courts must affirmatively place in the record that they performed all functions required by the rules in a lawsuit, even absent any sort of challenge. To fail to make such a record finding, the majority holds, is error so clear and fundamental as to require reversal.
c. Lack of Prejudice
Even if the majority were correct in asserting that the judge erred, it fails to show how that error prejudiced Essex. Proof of the deprivation of a fundamental right is essential to the majority’s line of reasoning.47
It is logically impossible to show on the current record that Essex was prejudiced in any way at all by the judge’s failure to make a record finding of just cause.48 On *857the record before us, it cannot be said that Essex was prejudiced by any failure to establish just cause — because for all we know the judge did establish, and establish correctly, that the juror must be excused. Nor, for exactly the same reason, can we say that Essex was prejudiced by any invocation of the stipulation without first fulfilling some presumed “condition precedent” — because for all we know the judge did fulfill the supposed condition precedent by establishing just cause.49 Finally, we cannot say that Essex was prejudiced by having her case resolved by 11 jurors instead of 12 — she had agreed to accept a verdict of 11, and nothing in the record shows that her waiver was inapplicable.
All that can be deduced with certainty from the present record is that the judge made no record finding as to just cause. The majority finds this silent record to be not only error, but plain error, and not only plain error, but plain error which prejudicially compromised the fairness of Essex’s trial. The error of the majority’s approach can be underscored with one simple observation: the majority cannot say what the judge here did, but they nonetheless conclude that she plainly did it wrong.
Given the silence of the record, the majority’s opinion establishes a presumption: when the trial judge fails to establish sua sponte that a rule was obeyed, this court may assume that the rule was disobeyed.
The usual rule, I would have thought, was just the opposite: a court can assume that the trial judge properly applied the rules unless the record shows she erred. On the facts of this case, then, one would expect that the trial judge established that it was “necessary for just cause” before she proceeded to dismiss the absent juror.
The critical inquiry, which the majority completely ignores, is thus not whether the error was “plain” or substantial. The initial inquiry is whether any error at all appears on the record.50 My disagreement with the majority’s reading of the plain error rule can be simply put. The plain error rule applies only to errors which are “obvious.” It does not apply to errors which only might have happened. On this record, we see only silence. Thus, we have no error, unless silence itself is cause for reversal.51
The court’s action here adds new dimensions to the term “prejudice” and breaks new ground in the willingness of courts to set aside otherwise valid jury verdicts on hyper-technical grounds. The majority would set aside a conviction simply because the trial judge failed to speak the incantation “just cause” before excusing the absent juror.52
*858The majority’s logical legerdemain in conjuring error from pure silence is all the more remarkable because the silence of the record can be easily explained. Trial judges in the course of a trial must make countless rulings, many of which are implicit and need not be stated on the record. This was just such a ruling. The judge apparently assumed — as all parties to this case apparently assumed — that the cause for the juror’s absence was not at issue. It would have been a pointless and futile exercise for the judge to make and justify a record ruling on a point no one contested.
III. Conclusion
The real dispute in this case is not about how trial courts ought to proceed. The dispute is about how appellate courts ought to proceed. The appellant raised one issue to the trial court. The trial court correctly disposed of that issue. That issue, and only that issue, was pursued on appeal. The majority, like the trial court, has ruled that issue not to be meritorious.
Despite its resolution of the issue actually raised, the majority has rested upon another issue: whether the lack of a record finding as to the cause for the juror’s dismissal violated the requirement that jury trials be unanimous. The “just cause” branch of this argument was essentially raised from the bench at oral argument, elaborating on a throwaway footnote in appellant’s brief; the “unanimity” branch of the argument was nowhere debated before the court retired to chambers with this case. The court thus raised to itself the issue it finds determinative.
Because of the majority’s choice to decide the case on an issue that was not argued or briefed this case has taken on a somewhat bizarre cast. The majority has labored mightily — if unsuccessfully — to derive by exegesis the arguments appellant’s counsel never made. It similarly has conjured from a silent record — a record silent presumably because the parties saw no need to supplement the record so that the “just cause” argument could be reached— an impressive array of “facts” that it finds lurking in the record.
The double-barrelled overreaching compounds the dangers inherent in the majority’s approach. Because the majority has strained to conform both the legal arguments and the factual record to its own conception of the case, neither the facts nor the parties’ arguments can serve as a check: because the legal issues were never previously raised, the facts which might have shown whether they were apt never surfaced; because the record is unclear, it cannot be stated with certainty whether the legal arguments are on point.
Having performed these Herculean efforts to restructure the case, the majority draws some conclusions that — if not apropos — are nonetheless inoffensive in themselves. Judges should know why jurors fail to reappear. The terms of stipulations should be honored. The law does require unanimous verdicts.
My dispute is not with these principles. It is with the process. In deciding issues that really were not raised, in relying on facts that really are not clear, this court abandons the structured decision-making process on which our courts rest. I simply argue that this does not, and cannot, promote basic justice — so long as justice, as Cardozo urged, is construed to include fairness to the accuser as well as to the accused.
For the foregoing reasons, I respectfully dissent.
. I hope that this as a precedent is confined to its facts: i.e., the precise stipulation entered into here, a defendant named Essex, a lawyer named Goodbread, the offense of heroin possession, etc.
. The majority claims that this dissent "rests on loose and highly speculative possibilities and assumptions that have no support in the record.” Maj.Op. at 843. The quotations proffered by the majority, however, all involve instances where the dissent candidly acknowledges that the record is unclear.
. No. 83-1169, United States v. Essex, Supplemental Record [hereinafter, Trial Transcript] at 39-40.
. Id. at 42-43.
. Brief for Appellant at 6-7.
. Id. at 7-8.
. Trial Transcript at 398.
. No. 83-1169, United States v. Essex on Appeal [hereinafter, Record] at 19.
Essex’s attorney did advance essentially the same footnote argument as was later used on appeal. Defendant’s Memorandum in Support of a Motion for a New Trial 5-6.
. Trial Transcript, Part 2, at 2.
. Record at 25.
. Brief for Appellant at 10-14.
. Majority Opinion at 12. The same argument has been rejected by at least one other court. United States v. Pacente, 503 F.2d 543, 552 (7th Cir.) (en banc) cert. denied, 419 U.S. 1048, 95 S.Ct. 623, 42 L.Ed.2d 642 (1974) (“[D]efendant argues that the stipulation only authorized release of a juror during the receipt of evidence, not after the jury retired to deliberate. The stipulation, however, contains no such limitation, and the language of Rule 23(b) permitting stipulation any time before verdict clearly requires none.”)
. Brief for Appellant at 23-24, 24 n. 5.
. The majority attempts to suggest that the factual ambiguities were resolved at oral argument, claiming that the government stated that "so far as [it] knew, the reason for the missing juror’s absence was never determined.” Maj.Op. at 837.
Several objections can be raised to the majority's apparent reliance on the government’s alleged statements at oral argument. First, I was not aware at oral argument that any such concession was made by government counsel. I heard the government counsel state squarely that no inquiry needed to be made, but I never heard him make the very different statement that none had been made. Since no tape recording was made of the oral argument, the majority’s version of events cannot be proved or disproved. Secondly, the attorney appearing for the government at oral argument — Mr. Facciola — made no appearance of record at Essex’s trial. Any statement he might have made as to his knowledge would prove at most that he had made no inquiries into an issue that was never squarely raised until oral argument. Finally, in any event, not even trial counsel would necessarily know whether the judge had in fact made inquiries sufficient to establish the cause for the juror’s absence. Any statement made by the government at oral argument would thus leave the factual record exactly as it was before: completely silent as to whether just cause existed or was established for the juror’s dismissal.
. Today’s majority opinion is thus based on a precarious pyramid of speculations. What if the trial court failed to ascertain why the missing juror was absent? What if that juror was missing for an illegitimate reason? What if that reason was that the missing juror was a holdout for acquittal?
It could, of course, be argued that this court cannot afford to risk that these “what if" situations might have occurred. It could be argued that the burden rests on the trial court to show affirmatively that these “what ifs” are not lurking in a silent record.
The majority does not take this approach. Instead, the majority assumes the answer to many, if not all, of these “what if' issues, and proceeds to fashion an opinion responsive to what might have been. It does not diminish the incorrectness of the majority’s approach to concede that every guess made might be correct. What matters is that the majority fails to base its opinion on what can be fairly drawn from the record (or, indeed, even on what can be fairly drawn from defense counsel’s own account of his off-the-record telephone conversation with the trial judge).
This disregard of the record — and the corresponding reliance on speculations which are treated as facts — has serious jurisprudential implications. In our system, judges are supposed to play a limited role; they are required to rule on the facts of the case and controversy before them.
The interests preserved by limiting judges to the facts of a particular case are obviously undercut when judges rely on supposed situations not presented by the record. In recognition of this, courts have traditionally refused to rule when the record is unclear. See, e.g., United States v. Blackwell, 694 F.2d 1325, 1344 (D.C.Cir.1982) (Robinson, J., concurring) ("It is an elemental and well-settled proposition that courts will not consider an issue first raised on a criminal appeal when the record is incomplete or lacks sufficient data to ensure sound resolution of the issue.’’).
. Fed.R.Crim.Proc. 51.
. Fed.R.Crim.Proc. 52.
. Maj.Op. at 843 n. 15.
. Government Brief at 7 n. 3. The entire text of the government’s concession reads:
As explained in her brief, appellant's counsel, who was at an administrative hearing, communicated his objections to accepting a verdict from eleven jurors in a telephone conversation with the trial judge. Brief for Appellant at 7-8. The contents of that call are not a part of the record on appeal, but for the purposes of this appeal we credit appellant's representations that her counsel objected to accepting a verdict of less than twelve jurors. Just before the verdict was returned, appellant's counsel noted for the record his objection to accepting a verdict from eleven rather than twelve jurors (Tr. 397).
. Maj.Op. at 842.
. Id.
. Id. at 842.
. Maj.Op. at 836.
. Trial Transcript at 397 (emphasis added).
. Appellant’s Brief at 7.
. Id. at vii (emphasis in the original).
. Id. at 12-13.
. Id. at 16.
. Id. at 18-20.
. Id. at 20-21.
. This review of what Essex’s counsel actually said helps place back in context certain phrases carelessly used by the majority. An example involves the word "necessary.” The majority implies that this word was used by Essex’s counsel in the same sense it uses the word: that the excusing of the juror was impermissible because it was not shown to be necessary. Maj.Op. at 836.
A careful reading of Essex’s brief suggests that a different meaning was intended. The meaning apparently intended was that since no juror was excused before the end of testimony, it was not "necessary” to invoke the stipulation before it expired. Appellant’s Brief at 6-7.
Another example is the trial judge’s reported conclusion that she saw "no difference” in the situations posited by Essex’s attorney. The majority concludes from this phrase that she rejected Essex’s objection to proceeding with 11 jurors "on the ground” that there was no difference in whether the juror’s absence was proven necessary or not proven necessary. Maj.Op. at 836. If one must make assumptions, it certainly seems more reasonable to assume that the trial judge saw "no difference" in the two situations contrasted by Essex's attorney in his record statement below and throughout his brief on appeal: application of the stipulation to loss of a juror during the evidence taking phase of a trial, and application of the stipulation to loss of a juror during deliberations.
Finally, it places back into context the government’s concession. The government does concede that Essex’s attorney raised an objection to proceeding with 11 jurors. But, far from conceding the “just cause" issue the government fails to indicate that it had any notice whatsoever that the "just cause” issue would blossom into a basis for disposition of the case.
. Essex’s claim that a new waiver would be required explains her counsel’s reference to the need for “a subsequent, requested waiver.” Defendant’s Brief at 8.
. Maj.Op. at 839.
. As the majority correctly observes, the test for whether an objection is sufficient to embrace issues which are related but not mentioned in terms is whether the action requested of the judge is the same. Fed.R.Crim.Proc. 51.
Nor did Essex achieve the sort of "three in one” objection credited by the majority. While the majority, by stressing isolated phrases and even individual words, suggests a full array of objections, Maj.Op. at 836 n. 2, a more balanced reading of the record and briefs shows that Essex’s counsel tenaciously pursued a single point. See note 30, supra.
. Courts invoke the plain error doctrine cautiously and in exceptional circumstances, United States v. Adams, 634 F.2d 830, 836 (5th Cir.1981); United States v. Diez, 515 F.2d 892, 896 (5th Cir.1975), cert. den., 423 U.S. 1052, 96 S.Ct. 780, 46 L.Ed.2d 641 (1976), in order to correct obvious and substantial error, United States v. Gerald, 624 F.2d 1291, 1299 (5th Cir.1980), cert. denied, 450 U.S. 920, 101 S.Ct. 1369, 67 L.Ed.2d 348 (1981). The error must be not only plain and obvious but also of a type that would significantly prejudice the defendant. Reisman v. United States, 409 F.2d 789, 791 (9th Cir.1969). See generally, C. Wright, Federal Practice and Procedure: Criminal 2d § 856 (1982).
. Fed.R.Crim.Proc. 23(b).
. Jurors are officers of the court, Clark v. United States, 289 U.S. 1, 53 S.Ct. 465, 77 L.Ed. 993 (1933), and are subject to restraints like those that can be applied to attorneys, including contempt of court. Id. In addition, under some circumstances those preventing a juror from performing his duties can be charged with obstruction of justice.
. Maj.Op. at 844.
. The majority leaves open the possibility that the parties can waive the just cause require; ment. Maj.Op. at 840 n. 11. In raising the possibility that the just cause requirement could never be waived the majority makes the daring intellectual leap of imagining a situation where a recalcitrant juror, failing to appear for no good cause, could frustrate the desire of all parties and the court to continue trial. This line of reasoning would give to a juror an inalienable right to create a mistrial.
Even if the just cause requirement could be waived, problems would still ensue. The present case at least suggests one category of problematical cases: the parties fail to realize that the juror’s absence was not for just cause, and so continue trial under the original stipulation. If an appellate court followed today’s majority in deciding sua sponte on appeal that the juror’s absence was not justified, a mistrial would be required. The moral is that the parties are better off when the juror’s absence clearly is unjustified, for at least then they could agree to a second waiver, whereas they might be lulled into relying on the first stipulation if they thought the juror’s absence was justified.
. United States v. Roby, 592 F.2d 406 (8th Cir.1979), cert. denied, 442 U.S. 944, 99 S.Ct. 2888, 61 L.Ed.2d 314 (1979).
. Fowler v. Hunter, 164 F.2d 668 (10th Cir.1947), cert. denied, 333 U.S. 868, 68 S.Ct. 785, 92 L.Ed. 1146 (1948). This case obviously predated the rule at issue here.
. As the previous cited cases indicate, this has in fact been the approach of the courts, perhaps because the closely related rule governing the discharge of jurors where alternates are to be used asks whether the court finds it necessary to excuse a juror. This approach makes sense, because it does not punish the parties simply because a juror has acted wrongfully.
Nor must the judge sua sponte establish the cause for the juror’s absence in the ordinary case. In some exceptional cases, the judge should affirmatively ensure that the juror's absence did not occur for a reason that would violate the Constitution. For example, the judge arguably should always establish in a death penalty case that a juror did not excuse himself because he believed that the death penalty should not be applied on the facts of a particular case. Green v. Zant, 715 F.2d 551 (11th Cir.1983). In some other cases, an argument could be made that excusing a juror after deliberations have begun runs the risk of violating the unanimous verdict requirement of Rule 31(a). This argument — which was not even raised by appellant on appeal — would fail on the facts of this case. First, the jury deliberated for a reasonable amount of time after the juror was excused, which arguably cures any lack of unanimity defect. See United States v. Vega, 447 F.2d 698 (2d Cir.1071), cert. denied, 404 U.S. 1038, 92 S.Ct. 712, 30 L.Ed.2d 730 (1972). Secondly, it is entirely possible that the judge did ensure that the juror was not absent for impermissible reasons.
In the ordinary case, the court need only have a "sound basis” for exercising its broad discretion. Cases specifically addressing whether a juror should have been excused under a stipulation are rare, but many cases have faced the closely related question of whether a juror should be excused and an alternate seated. The courts traditionally have found this sound basis *855in unsupported claims of illness, inability to travel safely to the courthouse, or other conflicts. United States v. Shelton, 669 F.2d 446 (7th Cir.), cert. denied sub nom. Bledsoe v. United States, 456 U.S. 934, 102 S.Ct. 1989, 72 L.Ed.2d 454 (1982) (juror telephoned to say that she was ill); United States v. Dumas, 658 F.2d 411 (5th Cir.1981), cert. denied, 455 U.S. 990, 102 S.Ct. 1615, 71 L.Ed.2d 850 (1982) (juror excused at employer’s request); Rogers v. United States, 319 F.2d 5, 7 (7th Cir.1963), cert. denied, 375 U.S. 989, 84 S.Ct. 524, 11 L.Ed.2d 475 (1964) (snowbound juror telephoned), see generally, Note, Federal Rules of Criminal Procedure 23(b) and 24(c): A Proposal to Reduce Mistrials Due to Incapacitated Jurors, 31 Am.U.L.Rev. 651, 655 n. 36 (1982). Pursuing the majority’s logic to its logical conclusion, the judges in these cases should have affirmatively established that the juror’s stated excuse was true.
In some cases, the inconvenience caused the court by the juror’s unexplained absence has been enough to justify dismissal without further inquiry. United States v. Rodriguez, 573 F.2d 330, 332 (5th Cir.1978) ("When a juror is absent from a court for a period sufficiently long to interfere with the reasonable dispatch of business there may be a ‘sound’ basis for his dismissal.’’). See also United States v. Peters, 617 F.2d 503 (7th Cir.1980) (Discharge of juror for being 10 minutes late was upheld even where no telephone inquiry was made as to juror’s whereabouts); United States v. Domenech, 476 F.2d 1229, 1232 (2d Cir.), cert. denied, 414 U.S. 840, 94 S.Ct. 95, 38 L.Ed.2d 77 (1973) (juror excused for being 10 minutes late to courtroom; judge made no inquiries into juror’s whereabouts). The “good cause” inquiry might change when alternates are not available, or when deliberations have begun, but the majority fails to offer district judges any guidance whatsoever as to what constitutes "good cause” under any circumstances.
. The majority fails to cite a single case where a conviction was overturned because the judge failed to establish on the record whether there was a just cause for a juror’s dismissal. Even if the majority's approach were correct, the utter novelty of its approach should weigh against holding that the judge committed plain error by failing to anticipate this court’s reasoning. See United States v. Blackwell, 694 F.2d 1325, 1342 (D.C.Cir.1982) (Wald, J.) (”[T]he lack of prior precedent in the circuit and the novelty of the issue presented militate against calling the judge’s mistake plain error.”).
. The majority does attempt to finesse the silence of the record by overstating the breadth of the “concession” made by the government. The government did concede that Essex’s attorney objected to continuing trial with only 11 jurors; nowhere, however, did the government concede that the "just cause" issue was raised to the trial judge. See n. 31, supra. The majority's tortured reading of the government’s concession can carry only one message to trial counsel: concede nothing, lest your modest concession metamorphose into a general admission.
. The majority attempts to address this problem by asserting that the use of the verb “find” in Rule 23 requires a formal finding on the record. Maj.Op. at 846 n. 17. American courts have long held, in analogous circumstances, that such use of the verb "find” does not require a formal finding in the record. See, e.g., State v. City of Beloit, 74 Wis. 267, 42 N.W. 110 (1889); Clairol, Inc. v. Andrea Dumon, Inc., 14 Ill.App.3d 641, 303 N.E.2d 177, 182 (1973).
. In an apparent attempt to create a Constitutional basis for its holding, the majority holds that "the appellant's right to a unanimous jury was violated.” Maj.Op. at 839. This argument was never raised by the parties. Aside from general references to Essex’s right to a unanimous verdict of 12 jurors, there is not even a reference that can be extrapolated: there is no mention of Rule 31 of the Federal Rules of Criminal Procedure, which establishes the right *856to a unanimous verdict; there is no discussion of the relevant cases (although one case, United States v. Vega, 447 F.2d 698 (2d Cir.1971), cert. den., 404 U.S. 1038, 92 S.Ct. 712, 30 L.Ed.2d 730 (1972), is string cited for the proposition that Rule 24(c) waivers do not extend past the beginning of deliberations); and there is no discussion of how the 11-0 verdict might have violated unanimity. Because this issue was never addressed by the parties — and because the facts necessary for its proper resolution have not been included in the record on appeal — I feel that this court oversteps its bounds in addressing it.
If the issue is to be broached, however, it deserves a more thorough analysis than the majority gives it. The majority makes three assertions with which I agree: Rule 31 requires federal jury verdicts to be unanimous; Essex never waived her right to a unanimous verdict; and in some very rare cases the dismissal of a juror during deliberations can amount to the acceptance of a non-unanimous verdict. What the majority fails to address at all is the difficult nub of the issue: whether the 11-0 verdict in this case — especially since there is no evidence at all that the dismissed juror was a holdout — violates the right to a unanimous verdict.
The majority’s ignoring that the ultimate verdict was unanimous is all the more curious because the majority earlier recognizes "a distinction between ... a jury of 12, and ... unanimity." Maj.Op. at 840. The majority cites two cases in support of this proposition, United States v. Pachay, 711 F.2d 488, 492 (2d Cir.1983), and United States v. Vega, 447 F.2d 698, 701 (2d Cir.1971), cert. den., 404 U.S. 1038, 92 S.Ct. 712, 30 L.Ed.2d 730 (1972). In Vega, a juror identified as a hold-out was excused in order to avoid a mistrial. The jury deliberated a short time longer, and a verdict of guilty was returned. The appeals court upheld the verdict, despite the appellant's claim that the verdict lacked unanimity. In Pachay, the Second Circuit affirmed the distinction between waiving a unanimous verdict and waiving a jury of 12, even while recognizing that in some cases more extreme than Vega excusing a juror identified as a hold-out would be tantamount to accepting a non-unanimous verdict.
If this court were to apply the Second Circuit’s approach, it seems clear that — even assuming the “worst possible” case presented by the majority — the action of the trial court would not violate any right to a unanimous verdict. In Vega, the juror was excused because of being a hold-out. That did not violate unanimity. In this case, there is a sliver of a chance that the missing juror was a holdout. If there is no violation of unanimity when there is a certainty that a juror is a hold-out, I fail to see why there is a violation of unanimity when there is a mere chance that the juror is a hold-out, (especially since here, as in Vega, the dismissal was pursuant to a valid stipulation, and the jury continued to deliberate before reaching a verdict).
. United States v. Hensel, 711 F.2d 1000 (11th Cir.1983) (no plain error where defendant was not prejudiced); United States v. Lopez, 575 F.2d 681 (9th Cir.1978) (no reversal where error is harmless).
. The majority holds — quite correctly — that when the record shows that improper advances have been made to jurors or that inappropriate persons have been injected into the jury's deliberations, it need not be proven that the jurors’ thought processes were altered. Maj.Op. at 845.
That is a far cry, however, from the facts of this case. There has been no showing on the record that "something happened;” indeed, there has been no showing at all either that the missing juror was not absent for good cause or that the missing juror was a holdout for acquittal. The majority’s assertion that prejudice need not be shown here logically extends to all allegations concerning the jury. Following the major*857ity’s logic, it can be argued on appeal that a jury verdict should be set aside because a juror might have read or seen a news account concerning the trial, even absent any proof that a news account was ever published. Apparently, for the majority the mere allegation that "fundamental jury procedures" might have been violated suffices to substitute for prejudice.
. This is not to concede that there was a condition precedent — only that if there was a condition precedent, there is no record evidence establishing that it was not fulfilled.
. I thus do not dispute the well-settled — but, on this record, irrelevant — proposition that courts can respond to errors plainly apparent on the record when those errors effect substantial rights. See Fed.R.Crim.Proc. 52. The point remains, however, that even though the plain error rule represents a limited exception to the adversary system normally relied upon in American trials, it does not support a disregard of the requirement that the courts be limited to the facts of the case.
. The majority observes that the absence of a bench warrant gives evidence that no search was attempted. Even if this is true it ultimately proves nothing, since the reason for not attempting a search might well have been that the trial judge knew where the juror was and why the juror was absent.
. This case is fundamentally different from the situation possible under the newly enacted version of Rule 23(b) under which the judge can accept a verdict of less than twelve without the defendant’s consent. Here, the defendant prospectively made her own choice: she preferred a verdict of less than twelve to delay or a mistrial. Under the new rule, the judge can make that choice for the defendant. Under the new rule, because it is the judge who chooses, the judge should carefully consider all proposed alternatives to proceeding with less than 12 and, if challenged, justify the choice made.