The following excerpt is from U.S. v. Lustig, 555 F.2d 737 (9th Cir. 1977):
See also United States v. Zambito, 315 F.2d 266, 269 (9 Cir.), cert. denied, 373 U.S. 924, 83 S.Ct. 1524, 10 L.Ed.2d 423 (1963) (judge permitted to dismiss juror after disclosure in chambers of untruthful voir dire response).
Courts will not presume prejudice where the judge removes a juror. United States v. Ellenbogen, 365 F.2d 982, 989 (2 Cir.), cert. denied, 386 U.S. 923, 87 S.Ct. 892, 17 L.Ed.2d 795 (1966). Most of the cases cited by Lustig in which prejudice was found are ones in which the jury was retained, not excused. It is difficult to see what prejudice could result from placing an alternate juror, approved by the defendants, on the jury in place of a juror who cannot fairly perform his duties. The opposite would have been prejudicial. 9
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