479 U.S. 954

In this case, the District Court permitted a thirteenth, alternate juror to participate in the jury’s deliberations, a procedure to which petitioner’s counsel stipulated. The thirteen jurors unanimously found petitioner guilty. On appeal, petitioner argued that the use of a thirteen-member jury violated Federal Rule of Criminal Procedure 24(c), that the Rule is not waivable, and that even if it is, it can only be waived by a defendant personally and not by counsel. The Court of Appeals held that petitioner, through his counsel, had waived compliance with Rule 24(c). It concluded that “[b]ecause the waiver herein was neither prejudicial nor of constitutional magnitude and was made in the presence of the defendant in open court, . . . the failure to obtain appellant’s personal assent . . ., [if erroneous,] was harmless beyond a reasonable doubt.” 790 F.2d 208 (CA2 1986). This decision conflicts with United States v. Virginia Erection Company, 335 F.2d 868, 870 (CA4 1964), which requires a defendant’s express and personal waiver of Rule 24(c), assuming that the Rule can be waived at all. See also United States v. Chatman, 584 F.2d 1358 (CA4 1978) (explaining Virginia Erection as establishing a per se rule of plain error in cases where Rule 24(c) is violated without obtaining a defendant’s personal consent); United States v. Beasley, 464 F.2d 468 (CA10 1972) (holding, in a case not involving an issue of waiver, that violations of Rule 24(c) are reversible per se, and approving the result in Virginia Erections ). I would grant certiorari to resolve this conflict.