throbber
United States Court of Appeals
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`
`
`Argued February 2, 2015
`
`
`Decided March 1, 2016
`
`No. 06-3190
`
`UNITED STATES OF AMERICA,
`APPELLEE
`
`v.
`
`KEITH B. MCGILL,
`APPELLANT
`
`
`
`Consolidated with 06-3193, 07-3001, 07-3003, 07-3065,
`07-3124
`
`
`
`On Appeals from the United States District Court
`for the District of Columbia
`(No. 02cr00045-01)
`(No. 00cr00157-12)
`(No. 00cr00157-18)
`(No. 00cr00157-19)
`(No. 00cr00157-20)
`(No. 00cr00157-21)
`
`
`
`
`Gregory Stuart Smith, Dennis M. Hart, Richard K.
`Gilbert, Manuel J. Retureta, David B. Smith, and Mary E.
`Davis, all appointed by the court, argued the causes for
`
`
`
`

`
`2
`
`appellants. With them on the briefs was Kristen Grim
`Hughes, appointed by the court.
`
`
`Leslie A. Gerardo, Assistant U.S. Attorney, argued the
`cause for appellee. With her on the brief were Ronald C.
`Machen Jr., U.S. Attorney at the time of the filing, and
`Elizabeth Trosman and Chrisellen R. Kolb, Assistant U.S.
`Attorneys. Mary B. McCord, Assistant U.S. Attorney, entered
`an appearance.
`
`
`Before: SRINIVASAN and MILLETT, Circuit Judges, and
`WILLIAMS, Senior Circuit Judge.
`
`
`Opinion for the Court filed PER CURIAM.
`
`
`PER CURIAM: In November 2000, a grand jury returned a
`
`158-count superseding indictment against sixteen defendants.
`The indictment alleged that, during the late 1980s and
`throughout the 1990s, those defendants conspired to run a
`large-scale and violent narcotics-distribution business
`centered in Washington, D.C. The defendants were charged
`with an array of offenses including narcotics conspiracy and
`racketeering conspiracy, as well as numerous counts of first-
`degree murder, assault with intent to murder, tampering with
`a witness or informant by killing, continuing-criminal-
`enterprise murder, and violent crime in aid of racketeering
`conspiracy.
`
`Many of the indicted defendants pleaded guilty to the
`charges, while the others went to trial in two separate groups.
`“Group One” consisted of six defendants, including the
`conspiracy’s alleged leaders, Kevin Gray and Rodney Moore.
`The Group One trial culminated in guilty verdicts and
`substantial sentences for each defendant. We affirmed most
`of those verdicts and sentences in United States v. Moore, 651
`
`
`
`

`
`3
`
`F.3d 30 (D.C. Cir. 2011), aff’d in part sub nom. Smith v.
`United States, 133 S. Ct. 714 (2013).
`
`“Group Two” consisted of five defendants from the
`
`November 2000 indictment: Deon Oliver, Franklin Seegers,
`Kenneth Simmons, James Alfred, and Ronald Alfred. Before
`their trial, the government obtained a separate six-count
`indictment against Keith McGill arising from his participation
`in the same conspiracy. The district court joined McGill for
`trial with the other Group Two defendants.
`
`On October 16, 2003, the Group Two trial commenced.
`
`Nearly six months later, on March 31, 2004, the jury began its
`deliberations. In April and May 2004, the jury found Oliver,
`Simmons, James Alfred, Ronald Alfred, and McGill guilty on
`all counts and found Seegers guilty on seven of the charged
`counts. After denying their posttrial motions, the district
`court sentenced all defendants to lengthy prison terms. Each
`received at least one term of life imprisonment, with the
`exception of Seegers, whose combined sentence of
`imprisonment amounted to forty years to life.
`
`The six Group Two defendants now appeal. Appellants
`
`challenge the sufficiency of the evidence against them on
`many of the charges. They also raise various claims
`concerning the conduct of the trial, including challenges to the
`district court’s dismissal of a juror during deliberations and to
`certain of the court’s evidentiary rulings. Appellants also
`allege prosecutorial misconduct and ineffective assistance of
`counsel, and one appellant (McGill) challenges his sentence.
`
`Upon review, we conclude that the evidence was
`
`sufficient to convict on all of the challenged counts. We also
`reject most of the claims of error or find that the alleged errors
`were harmless under the appropriate standard of review. We
`reverse the convictions on two counts against Seegers,
`
`
`
`

`
`4
`
`however, and we also remand to the district court to
`determine whether any of appellants’ conspiracy convictions
`must be vacated because of a Confrontation Clause violation.
`Certain of McGill’s sentencing arguments have merit,
`moreover, and we remand for examination of claims by
`Simmons and Ronald Alfred that they received ineffective
`assistance of counsel before the district court.
`
`is
`this court
`to
`Appellants’ consolidated briefing
`
`organized under discrete issue headings designated by Roman
`numerals. Our section headings conform to appellants’
`presentation of the issues (although we omit those section
`numbers denoting instances in which one appellant merely
`joined other appellants’ arguments). Detailed discussions of
`the facts, evidence, and proceedings will be set forth as
`necessary to address each issue appellants raise.
`
` We now proceed to address each issue raised by
`appellants. While certain of their arguments on each issue do
`not merit separate discussion, any arguments not directly
`addressed were fully considered and their disposition is so
`directly dictated by precedent as to not merit individualized
`discussion.
`
`I. Removal of Juror
`
`In their first joint argument, appellants challenge the
`district court’s dismissal of a juror for misconduct during
`deliberations. Appellants argue that the dismissed juror was
`inclined to vote for acquittal and that his dismissal violated
`their Sixth-Amendment right
`to conviction only by a
`unanimous jury. We find no error. We review the
`circumstances giving rise to the juror’s dismissal in some
`detail because the facts bear substantially on our review of the
`district court’s decision and our rejection of appellants’
`challenge.
`
`
`
`

`
`5
`
`A.
`
`1.
`
`The circumstances leading to the juror’s dismissal are as
`follows. On April 1, 2004, one day after its deliberations
`began, the jury sent a note to the district court indicating that
`it was experiencing some difficulties with one juror. The note
`reported that “[o]ne juror has stated categorically that he does
`not believe in any testimony from any of the cooperating
`witnesses.” J.A. 1049. That juror had also told the others
`“that there is no other evidence presented by the prosecution
`either direct, circumstantial, non-cooperating [witnesses],
`et[c]. that would likely lead to an unanimous decision.” Id.
`The district court
`instructed
`the
`jury
`to continue
`its
`deliberations.
`
`After the next day of deliberations, the jury sent another
`note to the court relating to “one juror.” Id. at 1052. That
`note relayed that the juror “ha[d] stated from the beginning of
`our deliberation that he does not believe any testimony of or
`by the prosecution, defense or any law enforcement witness.”
`Id. Once again, the district court told the jury to continue its
`deliberations.
`
`On April 8, the jury sent a third note to the court, stating
`that it had “had serious and productive discussion.” Id. at
`1064. The note further reported that “[o]ne juror continues to
`refuse to accept any evidence and discuss or consider any
`verdict but not guilty or not proven for any count or charge
`for any defendant.” Id. In response, the court instructed the
`jury that, although “each juror is entitled to his or her
`opinions[,] [e]ach juror should . . . exchange views with his or
`her fellow jurors[,] . . . discuss and consider the evidence, . . .
`consult with one another, and . . . reach an agreement based
`solely and wholly on the evidence.” Id. at 1076.
`
`
`
`

`
`6
`
`On April 14, the jury sent back two more notes in quick
`succession. The first note requested portions of the trial
`testimony. It also stated: “In addition, we have one juror #9,
`that refuses to participate in any and all deliberations for this
`trial.” Id. at 1078.
`
`The second April 14 note raised a separate issue
`concerning the same juror (Juror #9). It stated:
`
`
`On April 13, 2004, I Juror [#12] observed
`Juror #9 throughout deliberations writing notes
`or things out of his jury book [with] all
`defendants[’] charges, then at (April 13) the
`end [of] deliberations he pull[ed] 3 pieces of
`paper from that tablet (yellow)[,] fold[ed] them
`in half and placed them in his eye glass case.
`
`Id. at 1079. Another paragraph followed in different
`handwriting:
`
`
`Note as Foreman [Juror #10] I am very
`disturb[ed] and concern[ed] by th[ese] actions
`on Juror #9. If an alternate is available that
`would make me feel safer.
`
`Id.
`
`The district judge read the notes aloud when defense and
`government counsel gathered in the courtroom that day. The
`judge also shared additional information about what had
`transpired the previous evening. The judge stated that, as the
`jurors exited the van that transported them to a secure location
`at the end of each day, the foreman, Juror #10, took aside the
`accompanying marshal and told him that Juror #12 had
`witnessed Juror #9 removing notes from the jury room.
`According to the judge, Juror #10 spoke with the marshal
`
`
`
`

`
`7
`
`because the jurors had received instructions to take nothing
`out of the jury room. Juror #10 suggested that the marshal
`search Juror #9, which the marshal declined to do. Later that
`night, Juror #10 called the marshal on his cell phone,
`expressing fear “[t]hat the jurors might be compromised by
`whatever it was that was taken out of the room.” Id. at 5547-
`48.
`
`The court asked the two sides for their views on how to
`proceed. The government expressed concern about Juror #9’s
`potential misconduct in removing notes from the jury room
`and the fact that Juror #9 had apparently made the foreman
`“feel unsafe”; the government also worried that Juror #9 may
`have “given the impression to the jurors that their anonymity
`ha[d], perhaps, been compromised.” Id. at 5539-40. The
`government suggested that the court conduct individual voir
`dires of the three jurors involved: Juror #12, who claimed to
`have witnessed Juror #9 writing and hiding the notes; Juror
`#10, whom Juror #12 had told about the incident; and Juror
`#9.
` The government stressed the heightened security
`precautions the court had employed for the trial and explained
`that maintaining a “continued sense of safety, security, and
`anonymity . . . is all important as [the jurors] move forward in
`their deliberations.” Id. at 5564. In addition, the government
`argued that the first April 14 note provided more evidence
`that one juror—most likely Juror #9—had continuously
`refused to deliberate with the others. But the government
`suggested that the court defer consideration of that issue for
`the time being and instead focus on Juror #9’s alleged
`removal of notes from the jury room.
`
`The defendants, for their part, moved for a mistrial. They
`argued that the jury’s notes had established that Juror #9 was
`a holdout for the defense on at least some charges. In
`addition, counsel for Simmons asked the district court
`
`
`
`

`
`8
`
`whether it had specifically instructed “the jurors not to take
`any paper out of the jury room.” Id. at 5554. The court
`responded, “The marshals informed them they could not
`remove anything from the room.” Id. The court further
`explained that “their own notes have to be sealed. The room
`is locked each night after they leave, and they are told they
`can’t take anything out,” including notes. Id. Counsel asked,
`“That wasn’t an instruction given by the Court, that was
`something given by the marshals?” Id. at 5554-55. The court
`answered, “Right. It’s a standard instruction from the
`marshals, don’t take anything out of the room.” Id. at 5555.
`
`The district court decided to conduct individual voir dires
`of Jurors #12, #10, and #9. The court first questioned Juror
`#12. Juror #12 described witnessing Juror #9 “taking notes
`out of” and “copying stuff” from his juror notebook, which
`contained the indictments, the jury instructions, and the
`verdict forms. Id. at 5572. Juror #12 recounted that, after the
`conclusion of deliberations for the day, Juror #9 took three
`pieces of paper from his notepad containing “whatever he
`wrote,” “folded them up,” and “slid them in his eyeglass
`case.” Id. Juror #12 admitted that he did not know what
`Juror #9 had written on those pieces of paper. But when the
`court asked whether Juror #9 may have written “a grocery list
`or something like that,” Juror #12 said he “d[id]n’t think it
`was,” because he had observed Juror #9 “going through . . .
`the middle of the [juror note]book, and he was just taking
`little segments out of the book and just jotting them down,
`taking little segments out of the book, jotting them down,
`taking little segments out of the book, jotting them down.” Id.
`at 5576.
`
`Juror #12 also told the court that, when Juror #9 folded
`the pieces of paper and put them in his eyeglass case, he was
`“kind of looking out the side of his eye to see if anybody saw
`
`
`
`

`
`9
`
`him.” Id. at 5578. “That’s what made me suspicious,” Juror
`#12 said, “because he concealed it.” Id. Juror #12 also stated
`that he was in the best position to observe Juror #9’s actions
`because Juror #12 was sitting beside Juror #9. Finally, Juror
`#12 mentioned that he reported Juror #9’s actions because
`they contravened the court’s “instructions that we were not
`supposed to take anything home.” Id. at 5579.
`
`Next up was Juror #10, the foreman. The court asked
`Juror #10 to “walk [it] through” Juror #12’s statements to
`Juror #10 and the events leading up to the latest note. Id. at
`5580. After doing so, Juror #10 explained that he and Juror
`#12 had safety concerns because “[w]e don’t know what
`[Juror #9] [is] doing. He’s not participating.” Id. at 5581.
`When
`the court pressed further on why Juror #9’s
`nonparticipation created a safety issue, Juror #10 responded,
`“Well, because he’s distant. He’s been very distant, and I
`don’t know what’s in his mind. He’s been kind of stand-
`offish, and, again, everybody, to a certain degree, I think,
`feeling for the rest of the ten jurors, they’re very uneasy
`because they don’t know what to expect from that individual.”
`Id. at 5582. Juror #10 added that he “didn’t sleep too well last
`night” and was “disturbed” by Juror #9’s removing his notes
`because the jurors received “firm instructions not to remove
`any of the evidence or our notes. If he’s taking notes and
`putting it in his eyeglass case, that’s a problem and that’s
`against the rules.” Id. at 5585-86. “That brings a red flag to
`me,” Juror #10 continued, “and I’m concerned about, you
`know, the other jurors [and] myself as it relates to this case.
`We don’t know what he’s doing. We don’t know what his
`intentions are.” Id. at 5586.
`
`The court next questioned Juror #9. Juror #9 readily
`admitted that he had put something from his juror notepad
`into his eyeglass case. He stated, however, that it was a single
`
`
`
`

`
`10
`
`sheet of paper containing a “grocery list.” Id. at 5598. When
`asked about the list, Juror #9 said he had written “‘[m]ilk,
`eggs, bread’ and ‘fruit.’” Id. at 5598-99. Juror #9 confirmed
`that he had been sitting at the back of the room and away
`from the juror table when he wrote the note, though he denied
`that he had been trying “to be secretive about it in any way.”
`Id. at 5604. When the court asked whether he still had the
`note, Juror #9 answered that he had thrown it away.
`
`The district court also told Juror #9 that there had been
`“some concern about the way deliberations are going” and
`asked whether Juror #9 wanted to disclose anything in that
`regard. Id. at 5599-5600. The court made clear, however,
`that it did not want Juror #9 to discuss matters such as “guilty
`or not guilty, nothing like that.” Id. at 5600. Juror #9 told the
`court that “whenever someone expresses an opinion that’s not
`the majority, they get shouted down. They don’t get a chance
`to express their opinion.” Id. Juror #9 also stated that he had
`been looking at the evidence and expressing his opinions
`about the case to the others, but that “[t]hey don’t want to
`hear it. . . . They don’t want to listen.” Id. at 5605.
`
`After the court concluded its questioning of Juror #9, it
`again heard from both sides about how to proceed. Defense
`counsel renewed their requests for a mistrial. No one
`suggested that the court should voir dire additional jurors.
`
`2.
`
`The next day, on April 15, the court orally granted the
`government’s motion to remove Juror #9 for good cause
`under Federal Rule of Criminal Procedure 23(b). The court,
`at the time, based its dismissal of Juror #9 solely on his
`refusal to deliberate. The court’s statement from the bench
`referenced our court’s decision in United States v. Brown, 823
`F.2d 591 (D.C. Cir. 1987), which held that the dismissal of a
`
`
`
`

`
`11
`
`juror on the basis of the juror’s views about the government’s
`evidentiary case had
`infringed
`the defendants’ Sixth-
`Amendment right to be convicted only by a unanimous
`verdict. The district court understood Brown to require it to
`make a factual finding, beyond a reasonable doubt, that Juror
`#9 had refused to consider the law and the evidence at all (as
`opposed to considering the evidence and forming a decision
`in favor of acquittal). Based on the facts reported in the jury’s
`notes and the jurors’ voir dire testimony, the court concluded
`that Juror #9 had been totally unwilling to consider the
`evidence or discuss the case with the others, in violation of his
`oath as a juror and the court’s instructions.
`
`The court also observed that its decision to remove Juror
`#9 was not based on his removal of notes from the jury room.
`The court stated that, while it found it “likely that [Juror #9]
`was writing some notes,” the court could not “resolve[]
`beyond a reasonable doubt” whether “it was a grocery list” or
`“something about the case.” J.A. 5623. The government
`asked the court to reconsider its decision, arguing that the
`note-removal incident afforded an independent basis to
`remove the juror for misconduct. The government also
`offered its understanding that the factual findings underlying
`that ground for dismissal need not be made beyond a
`reasonable doubt. The court responded, “If the standard is
`preponderance of the evidence, I would agree with you.” Id.
`at 5625. But the court at the time was “not clear that that is
`the proper standard. If that’s the proper standard, then I think
`you’re right.” Id.
`
`When the jury returned the next day, on April 16, the
`court informed the jurors that Juror #9 had been excused for
`reasons not relevant to their deliberations and that an alternate
`would be joining them. The court told the reconstituted jury
`to begin its deliberations anew.
`
`
`
`

`
`12
`
`One week later, on April 23, following a motion by the
`government, the court issued an order determining that Juror
`#9’s removal of notes from the jury room constituted an
`independent basis to remove the juror for good cause. While
`the court had previously been uncertain whether it needed to
`make findings supporting that ground for dismissal under a
`more stringent standard than a preponderance standard, it now
`“found by a preponderance of the evidence that Juror #9’s
`misconduct of removing notes” afforded a “basis to remove
`him for good cause.” Id. at 1088.
`
`The court made factual findings concerning the note-
`removal
`incident
`in which
`it credited
`Juror #12’s
`“observations of the conduct of Juror #9.” Id. at 1087. The
`court thus found, consistent with Juror #12’s account, that
`Juror #9 had “cop[ied] passages from his juror notebook onto
`his note pad” and had “then removed three pages from his
`note pad and placed them in his eyeglass case.” Id. The court
`also credited Juror #12’s testimony that Juror #9 had acted in
`a “secretive, covert manner, attempting to avoid being seen by
`other jurors.” Id. The court observed that it did “not believe”
`and did “not credit the testimony of Juror #9 regarding this
`incident.” Id. at 1088. And the court stated that Juror #9’s
`actions were “a violation of the court’s instructions to the
`jurors that they must not remove anything from the jury
`room.” Id. at 1087.
`
`The court noted that safety considerations also informed
`its finding of good cause to excuse Juror #9 based on his
`removal of notes from the jury room. “Needless to say,” the
`court explained, “the safety and security of the jurors are
`matters that are of the utmost importance in this case,”
`especially given the unique “security procedures that are in
`place in this trial and the nature of the charges.” Id. at 1088.
`The court recounted Juror #10’s statement that “this incident
`
`
`
`

`
`13
`
`‘disturb[ed]’ him” and his resulting request that Juror #9 be
`replaced with an alternate so that he would “feel safer.” Id.
`
`The court concluded “that Juror #9’s misconduct of
`removing notes from the jury room constitutes an alternative
`and independent basis to remove him for good cause.” Id.
`The court explained that “[t]his misconduct, standing alone,
`would have required his removal from the jury panel, even
`absent the evidence of his refusal to deliberate.” Id.
`
`On April 26, the reconstituted jury returned guilty
`verdicts on all counts for four of the defendants—Oliver,
`Simmons, James Alfred, and Ronald Alfred. On May 4 and
`10, the jury returned its verdicts for the remaining two
`defendants, McGill and Seegers, finding McGill guilty on all
`counts and Seegers guilty on six counts.
`
`B.
`
`Federal Rule of Criminal Procedure 23(b) provides that,
`
`“[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 by the parties, if the court finds good cause to
`excuse a juror.” Fed. R. Crim. P. 23(b)(3). Here, instead of
`proceeding with eleven jurors, the district court replaced Juror
`#9 with an alternate and instructed the reconstituted jury to
`begin its deliberations anew. See Fed. R. Crim. P. 24(c)(3) &
`advisory committee’s note to 1999 amendment. Appellants
`challenge the dismissal of Juror #9 as a violation of their
`Sixth-Amendment rights (but do not separately challenge the
`decision to replace him with an alternate rather than proceed
`with eleven jurors).
`
`A variety of issues that may arise in the course of jury
`
`deliberations can constitute “good cause” to excuse a juror
`under Rule 23(b), including illness, family emergency, or, as
`
`
`
`

`
`14
`
`here, jury misconduct. See United States v. Vartanian, 476
`F.3d 1095, 1098 (9th Cir. 2007). “Jury misconduct” consists
`of “action by jurors that is contrary to their responsibilities.”
`6 Wayne R. LaFave et al., Criminal Procedure § 24.9(f) (4th
`ed. 2004). “Much of the jury behavior considered to be
`misconduct
`is prohibited
`specifically
`in preliminary
`instructions,” such as removing materials, discussing the
`merits of the case with a coworker or family member, giving
`false testimony during voir dire, or refusing to deliberate. Id.
`
`“[A] district court, based on its unique perspective at the
`scene, is in a far superior position than [a court of appeals] to
`appropriately consider allegations of juror misconduct.”
`United States v. Boone, 458 F.3d 321, 329 (3d Cir. 2006); see
`United States v. Sobamowo, 892 F.2d 90, 95 (D.C. Cir. 1989).
`As a result, we review a district court’s decision to excuse a
`juror only for an abuse of discretion. United States v.
`Ginyard, 444 F.3d 648, 651 (D.C. Cir. 2006).
`
`the Sixth Amendment
`In certain circumstances,
`constrains the district court’s discretion to remove a juror
`under Rule 23(b). In United States v. Brown, we held that “a
`court may not dismiss a juror during deliberations if the
`[juror’s] request for [his or her own] discharge stems from
`doubts the juror harbors about the sufficiency of the
`government’s evidence.” 823 F.2d at 596. Dismissal of a
`juror on grounds of her unwillingness to convict based on the
`evidence, we reasoned, would plainly violate a defendant’s
`Sixth-Amendment right to be convicted only by a unanimous
`jury. Id. But we noted “the problem” that the precise reason
`for a juror’s request to be dismissed—or, equivalently, for one
`juror’s suggestion that another juror be dismissed, see United
`States v. Symington, 195 F.3d 1808, 1086 (9th Cir. 1999)—
`“will often be unclear.” Brown, 823 F.2d at 596. The high
`premium our system puts on the secrecy of jury deliberations
`
`
`
`

`
`15
`
`precludes a trial court from “delv[ing] deeply into a juror’s
`motivations.” Id.; see Symington, 195 F.3d at 1086. A court
`thus may “prove unable to establish conclusively the reasons
`underlying” a juror’s request to be dismissed. Brown, 823
`F.2d at 596.
`
`The Brown court adopted an approach erring on the side
`of Sixth-Amendment caution. “[I]f the record evidence
`discloses any possibility that the request to discharge stems
`from the juror’s view of the sufficiency of the government’s
`evidence,” we stated, “the [trial] court must deny the request.”
`Id. Applying that approach to the facts before us, we found
`that the record revealed a “substantial possibility” that the
`juror in question had “requested to be discharged because he
`believed that the evidence offered at trial was inadequate to
`support a conviction.” Id. In light of that possibility, we
`concluded that the juror should not have been dismissed, and
`we reversed the convictions. And although Brown dealt
`specifically with a juror’s own request to be discharged, our
`court and other courts applying Brown’s approach (or a
`variant thereof) have adhered to the same analysis when a
`juror’s removal stems from another juror’s allegations or from
`circumstances that otherwise come to the court’s attention.
`See United States v. Carson, 455 F.3d 336, 352 (D.C. Cir.
`2006) (per curiam); Symington, 195 F.3d at 1085-87; United
`States v. Kemp, 500 F.3d 257, 304-05 (3d Cir. 2007); United
`States v. Abbell, 271 F.3d 1286, 1302 (11th Cir. 2001); United
`States v. Thomas, 116 F.3d 606, 622 (2d Cir. 1997).
`
`Appellants contend that Brown controls this case and
`mandates a new trial. They argue that, by the time of the
`jury’s April 14 notes to the district court—and certainly after
`the court completed its individual voir dires of Jurors #12,
`#10, and #9—the record revealed a likelihood that Juror #9
`was a holdout for the defense. They further submit that there
`
`
`
`

`
`16
`
`was a possibility that the other jurors’ allegations about Juror
`#9’s refusal to deliberate stemmed from Juror #9’s substantive
`view of the government’s case—that is, when the other jurors
`accused Juror #9 of nonparticipation in deliberations, they in
`fact were condemning him for his inclination to acquit based
`on the evidence. In those circumstances, appellants conclude,
`Brown obligated the district court either to keep Juror #9 or to
`declare a mistrial.
`
`The government, on the other hand, argues that Juror #9
`could be dismissed notwithstanding Brown because, rather
`than form a conclusion about
`the sufficiency of
`the
`government’s evidence, he refused to deliberate altogether.
`An outright refusal to deliberate, the government submits,
`constitutes a valid basis for dismissal notwithstanding Brown.
`In the alternative, the government contends that the dismissal
`of Juror #9 can be sustained based on what the district court
`explained was an “alternative and independent basis” for the
`juror’s discharge, J.A. 1088—viz., that Juror #9 had removed
`case-related notes from the jury room in violation of the
`court’s instructions.
`
`We agree with the latter argument and rest our decision
`exclusively on that ground. We therefore have no occasion to
`assess whether, had the district court based its good-cause
`dismissal solely on Juror #9’s refusal to deliberate, its
`decision would have run afoul of our decision in Brown.
`
`In resting our decision on the district court’s “alternative
`and independent” finding that Juror #9’s removal of case-
`related notes from the jury room constituted misconduct
`justifying his dismissal, we take guidance from our decision
`in United States v. Ginyard, 444 F.3d 648. Ginyard clarified
`that Brown does not stand in the way of dismissing a known
`
`
`
`

`
`17
`
`holdout juror for reasons independent of his views about the
`evidence. Id. at 652.
`
`The jurors in Ginyard told the trial court that their
`deliberations had been “heated” and
`that
`they were
`“deadlocked.” Id. at 650 & n.1. One note asked the court
`how they should handle “a juror who has stated that they do
`not believe the testimony of several witnesses and does not
`offer reasons based on evidence.” Id. The next day, Juror
`429 asked to be relieved from service to pursue a job
`opportunity through his rehabilitation program that might
`soon elapse. Id. After briefly questioning Juror 429 about the
`employment issue, the court announced that it would dismiss
`Juror 429 for good cause—i.e., to assure preservation of his
`job opportunity. Id. at 651. But before the court implemented
`the dismissal, it received information revealing that Juror 429
`was
`likely
`the holdout
`referenced
`in
`the
`earlier
`communications and might have doubts about
`the
`government’s evidentiary case. Id. at 651-52. The court
`proceeded to dismiss him anyway, and the remaining jurors
`found the defendants guilty. Id.
`
`On appeal, the government conceded that Juror 429’s
`dismissal was in error under Brown because the court
`discharged the juror despite learning that he may have been a
`holdout for the defense. Notwithstanding the government’s
`concession, we found that Brown “does not control.” Id. at
`652. We acknowledged that, by the time of Juror 429’s
`dismissal, the record revealed a “‘possibility that’ Juror 429
`believed that ‘the government had failed to present sufficient
`evidence to support a conviction.’” Id. (quoting Brown, 823
`F.3d at 597) (brackets omitted). We explained, however, that
`the Sixth-Amendment interests safeguarded by Brown do not
`always preclude a district court from exercising its discretion
`to dismiss a known holdout juror for good cause. “Were a
`
`
`
`

`
`18
`
`request dismissal because he was
`to
`juror
`holdout
`experiencing a heart attack,” for instance, “Brown would not
`prevent a district court from excusing that juror under Rule
`23(b) for good cause, even if the record suggested that the
`juror independently had doubts about the sufficiency of the
`evidence.” Id.
`
`Instead, Brown bars a juror’s dismissal “only [in] those
`situations where the ‘request for discharge stems from doubts
`the juror harbors about the sufficiency of the government’s
`evidence.’” Id. (quoting Brown, 823 F.2d at 596). We found
`“no evidence that Juror 429 sought dismissal, or was
`dismissed, because of his doubts about the government’s
`evidence.” Id. Rather, “the record indicate[d] that his request
`stemmed entirely from an employment-related need.” Id. We
`nonetheless ultimately vacated the convictions because we
`concluded that the district court had conducted an inadequate
`inquiry into whether Juror 429’s employment needs in fact
`rendered him unable to continue. Id. at 653-55. But what is
`critical for present purposes is our explanation that “Brown is
`not implicated” unless “there is some causal link between a
`juror’s holdout status and the juror’s dismissal.” Id. at 652.
`
`Ginyard thus establishes that, even if a trial court knows
`a juror may harbor doubts about the government’s evidentiary
`case, the Sixth Amendment does not always insulate the juror
`from removal. See id.; accord United States v. Edwards, 303
`F.3d 606, 634 (5th Cir. 2002). Rather, if the court forms an
`independent, good-cause justification for removing the juror
`that bears no “causal link” to the juror’s “holdout status,” the
`court may excuse the juror even if the juror “independently
`had doubts about the sufficiency of the evidence.” Ginyard,
`444 F.3d at 652. That understanding applies here.
`
`
`
`

`
`19
`
`Initially, the district court based Juror #9’s dismissal
`solely on his refusal to deliberate. Regardless of whether that
`ground would have involved the sort of “causal link between
`[the] juror’s holdout status and the juror’s dismissal” that
`would implicate Brown, id., the court later found that Juror
`#9’s misconduct in taking notes from the jury room
`“constit

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