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US Court of Appeals
FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
                                                     Nos. 98-10070
Plaintiff-Appellee-
                                                          98-10071
Cross-Appellant,
                                                          98-10143
v.
                                                     D.C. No.
JOHN FIFE SYMINGTON, III,
                                                     CR-96-00250-RGS
Defendant-Appellant-
                                                     OPINION
Cross-Appellee.


Appeal from the United States District Court
for the District of Arizona
Roger G. Strand, District Judge, Presiding


Argued and Submitted
November 4, 1998--San Francisco, California


Filed June 22, 1999

Before: Betty B. Fletcher and A. Wallace Tashima,
Circuit Judges, and James M. Fitzgerald,* District Judge.


Opinion by Judge B. Fletcher;
Partial Concurrence and Partial Dissent by Judge Fitzgerald


_________________________________________________________________
*The Honorable James M. Fitzgerald, Senior United States District
Judge for the District of Alaska, sitting by designation.
                               6617



SUMMARY

The summary, which does not constitute a part of the opinion of the court,
is copyrighted C 1999 by West Group.
_________________________________________________________________


Criminal Law and Procedure/Juries

The court of appeals reversed a judgment of conviction and
vacated a sentence. The court held that in a federal criminal
prosecution, the district court may not dismiss a juror if the
evidence shows any reasonable possibility that the impetus to
do so stems from the juror's view on the merits of the case.


An indictment charged appellant John Symington with
making false statements for the purpose of influencing a fed-
erally insured financial institution. Counts 13 to 15 alleged
that in borrower's affidavits, Symington submitted materially
false requests for disbursements on loans from Dai Ichi
Kangyo Bank (DKB).


At trial, Symington did not deny that he submitted the affi-
davits, or that they overstated his net worth in violation of the
loan agreement. However, he asserted that the net worth
requirement "never crossed his mind" when he made the draw
requests. The government's evidence showed that Symington
had shielded his financial statements from a full-blown audit,
so that an accountant could not determine that his net worth
was less than the $4 million he agreed to maintain when he
obtained the loan.


During deliberations, the jury sent a note to the district
court stating that one juror had stated her opinion before
review of all the charges. The court sent a note back urging
all the jurors to participate in deliberations, and reminding
them that each juror had to decide guilt or innocence individu-
ally.


The jurors sent a second note stating that the juror in ques-
tion was unable to participate in deliberations because she
could not maintain focus on the subject of discussion; could
not recall topics under discussion; refused to discuss her


                               6618


views with other jurors; required repetition of relevant infor-
mation prior to discussion or voting; and could not say what
was voted on immediately following a vote.


The district court questioned each juror separately with
counsel participating. Apart from the juror in question
(Cotey), each juror said that the second note accurately
described their concerns. They all said that Cotey appeared
confused and unfocused during deliberations. One juror said
that Cotey had "blocked" the others from reaching a verdict.
Juror Witter asked the court to dismiss Cotey because other-
wise the result would be a hung jury. Cotey said that she was
prepared to continue deliberating.


The district court dismissed Cotey for just cause under Fed.
R. Crim. P. 23(b) on the ground that she was unwilling or
unable to participate in the deliberative process in accordance
with the jury instructions. The court seated an alternate juror.


On September 3, 1997, the jury returned verdicts convict-
ing Symington on seven counts, including counts 13 to 16,
acquitted him on others, and was unable to reach verdicts on
11 counts. The district court declared a mistrial as to the 11
mistried counts.


Symington moved for an extension of time to file a post-
trial motion for judgment of acquittal or a new trial as to the
counts on which the jury voted to convict. The district court
took the motion under advisement and granted it on Septem-
ber 5, 1997. Symington filed his motion for judgment of
acquittal on October 10. The court heard argument on Decem-
ber 1, and took the matter under advisement until issuing an
order granting the motion as to count 11 only.


At sentencing on February 2, 1998, Symington moved for
dismissal of the mistried counts under the Speedy Trial Act
(STA). The district court granted the motion and dismissed
the mistried counts without prejudice.


                               6619


On appeal, Symington contended that the district court
committed prejudicial error by dismissing Juror Cotey
because the other jurors' complaints about her may have been
rooted in substantive disagreements about the merits of the
case, and that the dismissal based on such disagreements vio-
lated his Sixth Amendment right to an impartial jury. Syming-
ton also asserted that the evidence was insufficient to support
his convictions on counts 13 to 15.


In its cross-appeal, the government contended that the dis-
trict court erred in dismissing the mistried counts under the
STA because the court failed to exclude the period from Sep-
tember 3, 1997 (when Symington filed his extension motion)
to January 20, 1998 (when the court ruled on Symington's
post-trial motion for judgment of acquittal).


[1] Although "just cause" for dismissal under Rule 23(b)
generally pertains to physical incapacity or absence due to
religious observance, the Ninth Circuit has upheld dismissal
of a juror when the district court determined that the juror was
unable to deliberate impartially. [2] However, the district
court's discretion in this area is not unbounded. A court may
not dismiss a juror during deliberations if the request for dis-
charge stems from doubts the juror harbors about the suffi-
ciency of the evidence. To remove a juror because he is
unpersuaded by the government's case is to deny the defen-
dant's right to a unanimous verdict.


[3] If it was true that the other jurors sought Cotey's
removal because they disagreed with her on the merits of the
case, dismissal was improper.


[4] In refraining from exposing the content of jury delibera-
tions, a trial judge may not be able to determine conclusively
whether a juror's alleged inability or unwillingness to deliber-
ate is a reflection of the juror's opinion on the merits of the
case, an opinion that may be at odds with those of fellow
jurors. Thus, in the rare case when a request for juror dis-


                               6620


missal focuses on the quality of the juror's thoughts about the
case and her ability to communicate those thoughts to the rest
of the jury, the court will likely be unable to establish conclu-
sively the reasons underlying the request for dismissal.


[5] If the record evidence discloses any reasonable
possibility that the impetus for a juror's dismissal stems from
the juror's views on the merits of the case, the court must not
dismiss the juror. This rule is attentive to the imperatives of
preserving jury secrecy and safeguarding the defendant's right
to a unanimous verdict from an impartial jury. Given the nec-
essary limitations on a court's investigatory authority in cases
involving a juror's alleged refusal or inability to follow the
law, a lower evidentiary standard could lead to removal on the
basis of jurors' views of the sufficiency of the prosecution's
evidence.


[6] There was a reasonable possibility that Cotey's views
on the merits of the case provided the impetus for her
removal. There was evidence to suggest that the other jurors'
frustrations with her derived primarily from the fact that she
held a position opposite to theirs on the merits of the case. [7]
Because it was reasonably possible that the impetus for
Cotey's dismissal came from her position on the merits of the
case, it was error to dismiss her. Accordingly, it was neces-
sary to reverse Symington's conviction and vacate his sen-
tence.


[8] Because an appellate reversal of a conviction on the
basis of insufficiency of the evidence has the same effect as
a judgment of acquittal, the Double Jeopardy Clause would
have precluded retrial on Counts 13 to 15 if the court of
appeals found the evidence insufficient to convict Symington
on those counts.


[9] The jury could rationally have chosen to disbelieve
Symington's testimony that the net worth requirement "never
crossed his mind" when he signed the draw requests. A ratio-


                               6621


nal juror could have inferred that Symington was aware of the
$4 million requirement, and knew that he did not meet it when
he filed the false affidavits.


[10] As to Symington's intent to influence DKB, a rational
juror could have concluded from the evidence of the impor-
tance of the $4 million requirement that Symington intended
to influence DKB by submitting the affidavits claiming to
have met that requirement. Indeed, Symington submitted the
affidavits for the purpose of influencing DKB to continue to
disburse funds. [11] There was sufficient evidence to convict
Symington on counts 13 to 15.


[12] Time began to run under the STA on September 3,
1997. Since more than 70 days elapsed between September 3,
1997 and February 2, 1998, when Symington moved to dis-
miss the mistried counts, dismissal was required unless the
STA should have been tolled for some or all of that interval.
The two days from September 3 to September 5 were exclud-
able from STA calculations as time during which a
"proceeding concerning the defendant was actually under
advisement by the court." Symington filed his post-trial
motion for judgment of acquittal on October 10, 1997. Even
excluding the time from September 3 to September 5, the 70-
day period had passed well before the district court took the
motion under advisement on December 1.


[13] Any period of delay resulting from a pretrial motion
is excluded from the time of filing through disposition. Post-
trial motions are cause for exclusion only of the time the mat-
ter is under advisement. [14] The pendency of Symington's
post-trial motion was not excludable, and the district court
properly dismissed the mistried counts.


Judge Fitzgerald dissented in part, concluding that the evi-
dence did not support the majority's conclusion that there was
a reasonable possibility that the reason underlying the request


                               6622


for Cotey's dismissal was her views on the merits of the gov-
ernment's case.


_________________________________________________________________


COUNSEL

Terence J. Lynam, Akin, Gump, Strauss, Hauer & Feld,
Washington, D.C., for the defendant-appellant-cross-appellee.


George S. Cardona and David J. Schindler, Assistant United
States Attorneys, Los Angeles, California, for the plaintiff-
appellee-cross-appellant.


_________________________________________________________________

OPINION

B. FLETCHER, Circuit Judge:

John Fife Symington, III appeals from his conviction and
30-month prison sentence on five counts of making false
statements to financial institutions in violation of 18 U.S.C.
S 1014 and one count of wire fraud in violation of 18 U.S.C.
S 3231. Principal among the issues on appeal is Symington's
claim that his Sixth Amendment right to an impartial jury was
violated when the district court dismissed a juror on the eighth
day of deliberations. Symington also appeals from the district
court's denial of his post-verdict motion for judgment of
acquittal on three of the S 1014 counts. The government
cross-appeals, challenging the district court's post-verdict dis-
missal of one S 1014 count for insufficient evidence, and its
dismissal, several months after trial, of 11 unresolved counts
for violation of the Speedy Trial Act. We have jurisdiction
under 28 U.S.C. S 1291 and 18 U.S.C. SS 3731 & 3742. We
reverse Symington's conviction, but affirm the district court's
treatment of the evidentiary sufficiency and Speedy Trial Act

issues.

                               6623


I.

Prior to being elected Governor of Arizona in 1991,
Symington was a commercial real estate developer in Phoe-
nix. Between 1986 and 1992, Symington and his wholly-
owned company obtained several construction and permanent
loans from various lenders to support his real estate projects.
In order to obtain many of these loans, Symington agreed to
guarantee full or partial repayment of the loans himself. In
support of those guarantees, Symington was required to sub-
mit personal financial statements detailing his financial posi-
tion. Symington prepared those statements himself. The
indictment charged that many of the statements were materi-
ally false in that they overstated the value of Symington's
assets, understated or failed to disclose his liabilities, and
overstated the value of his interest in the real estate projects
he was developing. Symington was also alleged to have sub-
mitted contradictory versions of statements bearing the same
"as of" date.


A 23-count superseding indictment was returned against
Symington on January 9, 1997. Prior to trial, the district court
granted Symington's motion to dismiss one count as unconsti-
tutionally vague. Trial by jury on the remaining 22 counts
began on May 13, 1997, and lasted through the first week of
August, 1997. At the end of the trial, the district court granted
Symington's motion for judgment of acquittal on one count,
but denied the motion as to all other counts. The remaining 21
counts were submitted to the jury on August 8, 1997.


On August 15, 1997, the jury sent a note to the district
court judge stating, "Your Honor, we respectfully request
direction. One juror has stated their final opinion prior to
review of all counts." The judge discussed the matter with
counsel for both sides and then wrote back to the jurors
reminding them of their duty to participate in deliberations
with each other, but emphasizing also that each juror should
make up his or her own mind on the charges. On August 19,


                               6624


the jury sent the judge another, more detailed note. The note
read, in pertinent part:


       We have earnestly attempted to follow your last
      directive to continue with our deliberations. How-
      ever, the majority of the jurors sincerely feel that the
      juror in question cannot properly participate in the
      discussion with us.


       Reasons:

       Inability to maintain a focus on the subject of dis-
      cussion.


       Inability to recall topics under discussion.

       Refusal to discuss views with other jurors.

       All information must be repeated two to three
      times to be understood, discussed, or voted on.
      Immediately following a vote, the juror cannot tell
      us what was voted.


       We question the ability to comprehend and focus
      on the information discussed.


       This is the same juror of concern in our last com-
      munication.


The juror in question was Juror Cotey, a woman apparently
in her mid-70s.


After discussing the matter with counsel for both sides, the
judge separately questioned each member of the jury to deter-
mine the nature of the problem. Counsel participated in the
questioning. During the questioning, each of the jurors (other
than Cotey) agreed that the note accurately described their
concerns. The jurors suggested that the best solution would be


                               6625


for the judge to dismiss Juror Cotey. They all stated that
Cotey appeared confused and unfocused during deliberations.
Presiding Juror Carlson, for example, stated that


      [a]t first we almost felt it was someone that had their
      mind made up, which we were trying to work with
      and around. Everyone is certainly entitled to their
      opinion. That's what this is about. But as it prog-
      ressed and we tried to press for that opinion, because
      maybe it would affect ours and we wanted that input
      to add to ours and share, we got such rambling
      answers that we were all looking at each other
      around the circle like, my gosh, this answer's so off
      the wall it is not connected to the discussion in any
      way.


At other times, the jurors seemed less concerned about
Cotey's ability to deliberate than about her apparent unwill-
ingness to explain her thinking about the case. Although Juror
Witter described Cotey as "very intelligent," Juror Seaman
stated that Cotey "refuse[s] to discuss her views. . . . She just
seems to have her mind set. She says she doesn't have to
explain herself to anybody."


The statements of some jurors indicated that their frustra-
tion with Cotey may have derived more from their disagree-
ment with her on the merits of the case, or at least from their
dissatisfaction with her defense of her views. Juror Witter
stated that "[t]here's one element that [Cotey] felt strongly
about," and that Cotey "would stick on two of the elements
every time, because she didn't -- she just kept getting stuck
on two elements because that's how she felt and she wouldn't
really explain to us her rationale of her way she wanted to
vote." Juror Bamond saw Cotey as an obstacle to reaching a
verdict: "[W]e are blocked and blocked and blocked. And I
don't want to be blocked any more. . . . It's a long trial, it's
frustrating, you know."


                               6626


When the judge questioned Cotey, she stated that she was
prepared to continue deliberating. She noted that the other
jurors' frustration with her might be because "I can't agree
with the majority all the time, at least temporarily. And I'm
still researching and looking for more in the case. " Cotey also
complained of pressure from the other jurors: "I found myself
backed up against the wall for a vote every time, an objection
to my vote on a specific count or an element of the count."
Cotey stated, however, that she was prepared to stand by her
position even though she was clearly in the minority: "I real-
ized that I was the one isolated. But I also realized I told
[another juror] I was a separate juror and had a right and I
didn't like being bullied down on a point." Cotey claimed that
she was willing to discuss elements of the case with the other
jurors, but that she became intimidated when everyone talked
at once and demanded that she justify her views as soon as
she stated them.


The judge decided to dismiss Cotey because she was
"either unwilling or unable to deliberate with her colleagues."
The judge acknowledged that "no juror should yield a
thoughtfully-held position simply to arrive at a verdict," but
found that "there has been nothing stated by any of the jurors
that would indicate that that is the situation here. " Accord-
ingly, the judge excused Cotey "for just cause for being either
unwilling or unable to participate in the deliberative process
in accordance with the instructions of the Court. " On August
20, at Symington's request, the judge seated one of the alter-
nate jurors in Cotey's place and instructed the jury to begin
its deliberations anew. The next day, Symington moved for a
mistrial. He argued that the disagreement between Cotey and
the other jurors was rooted in the merits of the case, and that
dismissing Cotey prejudiced her view of the case. The district
court denied the motion. Symington renewed the claim in a
post-trial motion for a new trial, and the district court again

denied it.

On September 3, 1997, the jury returned verdicts convict-
ing Symington on seven counts (counts 10 and 11 and 13 to


                               6627


16, involving submitting false statements to financial institu-
tions, and count 21 involving wire fraud) and acquitting him
on three counts. The jury was unable to reach a verdict on the
remaining 11 counts, and the district court declared a mistrial
as to those counts. On January 20, 1998, the district court
granted Symington's motion for acquittal on count 11 but
denied the motion in all other respects. On February 2, 1998,
the district court sentenced Symington to a prison term of 30
months. On March 10, 1998, the district court dismissed the
11 mistried counts without prejudice, for violation of the
Speedy Trial Act.


Symington timely appealed from his conviction and sen-
tence, and the government timely cross-appealed.


II.

Symington argues that the district court committed revers-
ible error when it dismissed Juror Cotey on the eighth day of
deliberations after finding that she was "either unwilling or
unable to deliberate." Symington contends that the other
jurors' complaints about Cotey were -- or at least very possi-
bly may have been -- rooted in substantive disagreements
about the merits of the case, and that dismissing Cotey on
account of those disagreements violated his Sixth Amendment
right to an impartial jury. See U.S. CONST. amend VI ("In all
criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury. . ."). The govern-
ment responds that Juror Cotey was in fact either unable or
unwilling to deliberate properly, and that her dismissal was
warranted under Rule 23(b) of the Federal Rules of Criminal
Procedure.


[1] Rule 23(b) provides that "if the [district] court finds it
necessary to excuse a juror for just cause after the jury has
retired to consider its verdict, in the discretion of the court a
valid verdict may be returned by the remaining 11 jurors."1
_________________________________________________________________
1 Once the district court decided to dismiss Juror Cotey, Symington
requested that the court substitute an alternate juror instead of proceeding


                               6628


We review a district court's dismissal of a juror during delib-
erations for abuse of discretion. See United States v. Beard,
161 F.3d 1190, 1193 (9th Cir. 1998); United States v.
McFarland, 34 F.3d 1508, 1512 (9th Cir. 1994). We do so
because as a general matter, "the district court[is] in the best
position to evaluate the jury's ability to deliberate." Beard,
161 F.3d at 1194 (internal quotation marks omitted). Thus,
although "just cause" for dismissal under Rule 23(b) generally
pertains to physical incapacity or absence due to religious
observance, this and other courts have upheld the dismissal of
a juror when the district court determined that the juror was
unable to deliberate impartially. See id. at 1193-94 (dismissal
of two jurors proper after they became involved in an ongo-
ing, bitter argument leaving them emotionally unstable and
unable to deliberate); United States v. Egbuniwe , 969 F.2d
757, 760-61 (9th Cir. 1992) (dismissal proper where juror's
impartiality in doubt after juror's girlfriend was arrested by

police); United States v. Walsh, 75 F.3d 1, 4-5 (1st Cir. 1996)
(dismissal proper where juror was mentally unstable and
unable to engage in rational discussion); United States v.
Huntress, 956 F.2d 1309, 1312 (5th Cir. 1992) (dismissal
proper where juror diagnosed by doctor as suicidal and para-
noid).


[2] The district court's discretion in this area is not
unbounded, however. Indeed, "a court may not dismiss a juror
during deliberations if the request for discharge stems from
doubts the juror harbors about the sufficiency of the
evidence." United States v. Brown, 823 F.2d 591, 596 (D.C.
Cir. 1987); see United States v. Ross, 886 F.2d 264, 267 (9th
Cir. 1989) (citing Brown as describing a limit on district court
discretion). The reason for this prohibition is clear: "To
_________________________________________________________________
with 11 jurors as prescribed by the letter of Rule 23(b). Such substitution
is permissible where the defendant expressly waives his right to proceed
with 11 jurors. See United States v. McFarland , 34 F.3d 1508, 1511 (9th
Cir. 1994).


                               6629


remove a juror because he is unpersuaded by the Govern-
ment's case is to deny the defendant his right to a unanimous
verdict." United States v. Thomas, 116 F.3d 606, 621 (2d Cir.
1997); see Brown, 823 F.2d at 596 ("If a court could dis-
charge a juror on the basis of such a request, then the right to
a unanimous verdict would be illusory.").2


[3] Symington argues that the other jurors sought Cotey's
removal because they disagreed with her on the merits of the
case. It is undisputed that if this is true -- if the other jurors
did seek to remove Cotey because they disagreed with her
views on the merits -- then dismissal of Cotey was improper.
"[W]hen a request for dismissal stems from the juror's view
of the sufficiency of the evidence . . ., a judge may not dis-
charge the juror: the judge must either declare a mistrial or
send the juror back to deliberations with instructions that the
jury continue to attempt to reach agreement." Brown, 823
F.2d at 596. The question here is what evidentiary standard
the district court ought to employ in making that determina-
tion. Specifically, how likely must it be that a juror's views
on the merits underlies the request for her removal, before the
district court is precluded from removing the juror? We have
not previously answered this question in the federal criminal
context.3


A trial judge faces special challenges when attempting to
determine whether a problem between or among deliberating
jurors stems from disagreement on the merits of the case. "[A]
court may not delve deeply into a juror's motivations because
_________________________________________________________________
2 It is undisputed that Symington, as a federal criminal defendant, has a
constitutional right to a unanimous verdict. See United States v. Ullah, 976
F.2d 509, 513 n.13 (9th Cir. 1992).
3 In Perez v. Marshall, 119 F.3d 1422 (9th Cir. 1997), we faced a related
question in the context of federal habeas review of a state conviction. We
noted that "a trial court's findings regarding juror fitness are entitled to
special deference" on habeas review. Id. at 1426. The difference in proce-
dural posture between direct federal review and habeas-based review
makes Perez inapposite to this case.


                               6630


it may not intrude on the secrecy of the jury's deliberations."
Brown, 823 F.2d at 596; see Thomas, 116 F.3d at 619. There
are important reasons why a trial judge must not compromise
the secrecy of jury deliberations. First, if trial judges were
permitted to inquire into the reasoning behind jurors' views of
pending cases, "it would invite trial judges to second-guess
and influence the work of the jury." Thomas , 116 F.3d at 620.
Second, a trial judge's examination of juror deliberations risks
exposing those deliberations to public scrutiny. Such expo-
sure, in turn, would jeopardize the integrity of the deliberative
process. See id. at 618-19. As Justice Cardozo put it,
"Freedom of debate might be stifled and independence of
thought checked if jurors were made to feel that their argu-
ments and ballots were to be freely published to the world."
Clark v. United States, 289 U.S. 1, 13 (1933); see Frank A.
Bacelli, Note, United States v. Thomas: When the Preserva-
tion of Juror Secrecy During Deliberations Outweighs the

Ability to Dismiss a Juror for Nullification, 48 Cath. U.L.
Rev. 125, 153 n.215 (1998) ("Commentators long have feared
that the disclosure of deliberations to the general public could
affect a juror's decisionmaking process during trial and could
potentially undermine the public's confidence in the jury
system."); Benjamin S. DuVal, Jr., The Occasions of Secrecy,
47 U. Pitt. L. Rev. 579, 646 (1986) ("The secrecy of the jury
room, like that of the Supreme Court conference, is designed
to promote the free and candid interchange of views."); Note,
Public Disclosures of Jury Deliberations, 96 H ARV. L. REV.
886, 889 (1983) ("Juror privacy is a prerequisite of free
debate, without which the decisionmaking process would be
crippled.").4


[4] In refraining from exposing the content of jury delibera-
tions, however, a trial judge may not be able to determine
conclusively whether or not a juror's alleged inability or
_________________________________________________________________
4 The district judge in this case is to be commended for scrupulously
avoiding any discussion of jurors' views on the merits when he questioned
them about Juror Cotey.


                               6631


unwillingness to deliberate is simply a reflection of the juror's
opinion on the merits of the case, an opinion that may be at
odds with those of her fellow jurors. Thus, in the rare case
where a request for juror dismissal focuses on the quality of
the juror's thoughts about the case and her ability to commu-
nicate those thoughts to the rest of the jury, "the court will
likely prove unable to establish conclusively the reasons
underlying" the request for dismissal. Brown , 823 F.2d at 596.
In such cases a trial court lacks the investigative power that,
in the typical case, puts it in the "best position to evaluate the
jury's ability to deliberate." Beard, 161 F.3d at 1194.


The Second and D.C. Circuits have recognized this
dilemma. See Thomas, 116 F.3d at 620-23; Brown, 823 F.2d
at 595-97. Those cases both involved allegations that a juror
was unwilling or unable to apply the law as instructed by the
judge. In Brown a juror informed the judge that he was
"unable to discharge [his] duties as a member of th[e] jury."
823 F.2d at 594. In Thomas, the jury complained that one
juror had a "predisposed disposition" and that he was unwill-
ing to decide the case under the law as instructed by the
judge. 116 F.3d at 611. The Second and D.C. Circuits recog-
nized that the trial judges in those cases could not have
plumbed the depths of the problem without delving into the
juror's views on the merits of the case. Thus, those courts
held that "if 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, the court must deny
the request." Brown, 823 F.2d at 596; Thomas, 116 F.3d at
621-22 (quoting Brown).


[5] We hold that if the record evidence discloses any
reasonable possibility that the impetus for a juror's dismissal
stems from the juror's views on the merits of the case, the
court must not dismiss the juror.5 Under such circumstances,
_________________________________________________________________
5 We emphasize that the standard is any reasonable possibility, not any
possibility whatever. It may be that "[a]nything is possible in a world of


                               6632


the trial judge has only two options: send the jury back to con-
tinue deliberating or declare a mistrial. See Brown, 823 F.2d
at 596. This rule is attentive to the twin imperatives of pre-
serving jury secrecy and safeguarding the defendant's right to
a unanimous verdict from an impartial jury. We are confident
that "[g]iven the necessary limitations on a court's investiga-
tory authority in cases involving a juror's alleged refusal [or
inability] to follow the law, a lower evidentiary standard
could lead to the removal of jurors on the basis of their view
of the sufficiency of the prosecution's evidence. " Thomas,
116 F.3d at 622.6
_________________________________________________________________
quantum mechanics." United States v. Watkins , 983 F.2d 1413, 1424 (7th
Cir. 1993) (Easterbrook, J., dissenting). Indeed, as an early scholar of the
law of evidence observed, "[E]ven the most direct evidence can produce
nothing more than such a high degree of probability as amounts to moral
certainty." T. STARKIE, LAW OF EVIDENCE 478 (2d ed. 1833). Thus, to pro-

hibit juror dismissal unless there is no possibility at all that the juror was
dismissed because of her position on the merits may be to prohibit dis-
missal in all cases. We believe that the standard of "reasonable possibility"
in this context, like the standard of "reasonable doubt" in the criminal law
generally, is a threshold at once appropriately high and conceivably attain-
able.
All members of the panel agree that "reasonable possibility" is the
appropriate standard. The dissent, however, appears to define that standard
rather differently. Analogizing from the Ninth Circuit Model Criminal
Jury Instruction concerning "reasonable doubt, " the dissent contends that
a "reasonable possibility" is a possibility that leaves one " `firmly con-
vinced' that the impetus for [a juror's dismissal] was her position on the
merits." Dissent at 6655 (quoting 9TH CIR. CRIM. JURY INSTR. 3.3 (1997)).
As the dissent would have it, something is only reasonably possible if we
are firmly convinced that it is true. This formulation is based on a misun-

derstanding of our Model Jury Instructions. Model Instruction 3.3 pro-
vides that "[p]roof beyond a reasonable doubt is proof that leaves you
firmly convinced that the defendant is guilty." 9TH CIR. CRIM.JURY INSTR.
3.3 (1997) (emphasis added). Properly analogized to the "reasonable
possibility" context, the standard states that unless the available evidence
is sufficient to leave one firmly convinced that the impetus for a juror's
dismissal is unrelated to her position on the merits, the dismissal is
improper.
6 Cases subject to this rule, we emphasize, are infrequent. In general,
questions of juror bias or competence focus on "some event, or . . . rela-


                               6633


[6] Here, there was a reasonable possibility that Juror
Cotey's views on the merits of the case provided the impetus
for her removal.7 While there may have been some reason to
doubt Cotey's abilities as a juror, there was also considerable
evidence to suggest that the other jurors' frustrations with her
derived primarily from the fact that she held a position oppo-
site to theirs on the merits of the case. Juror Witter asked the
district judge to dismiss Cotey because otherwise the result
would be "an undecided vote, a hung jury." Juror Bamond
complained that because of Cotey, "we are blocked and
blocked and blocked. And I don't want to be blocked any
more." Cotey herself stated that she felt the other jurors were
frustrated with her because "I can't agree with the majority all
_________________________________________________________________
tionship between a juror and a party, that is both easily identifiable and
subject to investigation and findings without intrusion into the deliberative
process." Thomas, 116 F.3d at 621. In those cases, "the presiding judge

can make appropriate findings and establish whether a juror is biased or
otherwise unable to serve without delving into the reasons underlying the
juror's views on the merits of the case." Id.  Since the district court's inves-
tigative authority is not constrained by the same jury secrecy concerns in
those cases, the rule we announce here is not triggered. In cases where the
allegations go to the quality and coherence of the juror's views on the
merits, however, a trial judge may not be able to assess the juror's compe-
tence without exposing the content of the juror's views. The rule we
announce today applies only to those cases.
7 In several places, the dissent characterizes our decision as holding that
"Cotey's views on the merits of the case provided the impetus for her
removal." Dissent at 6634. We reach no such conclusion. Rather, we hold
that the evidence before the district court disclosed a reasonable
possibility that Cotey's views on the merits provided the impetus for her
removal. Because the issue involves the quality and coherence of Cotey's

deliberations, and because the district court properly avoided compromis-
ing the secrecy of the jury's deliberations, the evidence available to the
district court was necessarily limited. The district court had to evaluate the
issue on the basis of that limited information, information insufficient to
support any high degree of certainty as to the underlying motive for the
attempt to have Cotey dismissed. In light of that limited evidence, we con-
clude that the district court could not have been "firmly convinced" that
the impetus for Cotey's dismissal was unrelated to her position on the
merits of the case. See supra n.5.


                               6634


the time, at least temporarily." While the other jurors may not
have thought their difficulties with Cotey stemmed from her
position on the merits, such difficulties can certainly manifest
themselves in concerns about a juror's reasonableness or gen-
eral capacity as a juror. See Thomas, 116 F.3d at 622.8


[7] We hold that because it was reasonably possible that the
impetus for Juror Cotey's dismissal came from her position
on the merits of the case, it was error to dismiss her.9 Accord-
ingly, we reverse Symington's conviction and vacate his sen-
tence.


III.

A.

[8] Symington separately contends that the evidence was
insufficient to convict him on counts 13 to 15 of the indict-
ment. We must reach this claim even though we reverse his
conviction. See United States v. Aguilar, 80 F.3d 329, 334
(9th Cir. 1996) (en banc). "Because an appellate reversal of
a conviction on the basis of insufficiency has the same effect
_________________________________________________________________
8 Indeed, it appears that it was only because of their disagreement with
Cotey on the merits that the other jurors had occasion to question her abil-
ity to deliberate. Juror Bamond suggested as much when he stated that
keeping Cotey in the case would probably result in "an undecided vote,
a hung jury" except for the "few items that we -- we do mutually agree
upon." (emphasis added). Had Cotey tended to agree with the other jurors
on all points, they probably would never have noticed her alleged inability
to defend or explain her views.
9 We express no opinion on whether Cotey was in fact capable of contin-

uing with the deliberations. It may have been that she was not, and that
mistrial was the only viable option. But because it was reasonably possible
that the problems all stemmed from the other jurors' disagreement with
her position on the merits, it was error to continue the case without her.
There are, of course, other means by which a district court can ensure that
the seated jurors are capable of participating effectively in deliberations.
Voir dire is the primary mechanism. See Dyer v. Calderon, 151 F.3d 970,
973 (9th Cir. 1998) (en banc).


                               6635


as a judgment of acquittal, the Double Jeopardy Clause would
preclude retrial" on counts 13 to 15 if we found the evidence
insufficient to convict Symington on those counts. United
States v. McKoy, 771 F.2d 1207, 1215 (9th Cir. 1985). We
review the sufficiency of the evidence supporting a conviction
to determine whether, viewing the evidence in the light most
favorable to the government, any rational trier of fact could
have found the essential elements of the crime beyond a rea-
sonable doubt. See United States v. Ross, 123 F.3d 1181, 1184
(9th Cir. 1997), cert. denied, 118 S. Ct. 733 (1998).


Counts 13 to 15 alleged that Symington violated 18 U.S.C.
S 1014 by submitting materially false requests for disburse-
ments on loans from Dai Ichi Kangyo Bank (DKB). 18 U.S.C.
S 1014 subjects to criminal penalty anyone who "knowingly
makes any false statement or report, or willfully overvalues
any land, property, or security, for the purpose of influencing
in any way" a federally insured financial institution. Syming-
ton contends that the government's evidence showed only that
he submitted false statements to DKB, and that it was insuffi-
cient to support a conclusion that he did so knowingly or that
he intended to influence DKB with those statements.


In 1987 and 1988, DKB loaned Symington and his affili-
ates a total of $127,000,000 for the development of two real
estate projects. As part of the loan agreements, Symington
personally guaranteed payment of up to $9,000,000, and
promised to maintain a net personal worth of $4,000,000.
Symington further agreed that his failure to maintain that net
worth would put the loans into default. In order to obtain a
loan disbursement, Symington was required to prepare and
submit a "borrower's affidavit." One of the representations
reaffirmed in each affidavit was Symington's promise to con-
tinue to maintain a net worth of $4,000,000.


[9] Counts 13 to 15 relate to borrower's affidavits submit-
ted by Symington when his net worth was less than
$4,000,000. It is undisputed that Symington did submit affida-


                               6636


vits reaffirming his agreement to maintain a net worth of at
least $4,000,000 even after his net worth had sunk below that
level. Symington testified at trial that the net worth require-
ment "never even crossed [his] mind" when he signed the
draw requests. Nevertheless, we hold that the jury could ratio-
nally have chosen to disbelieve Symington's testimony. At
trial, evidence from Symington's own handwritten notes
showed that he had shielded his financial statements from a
full-fledged audit, so that no accountant could conclude that
his net worth was less than $4,000,000. A rational juror could
have inferred from this evidence that Symington was aware of
the $4,000,000 requirement, and knew he did not meet it
when he filed the false affidavits.


[10] As to Symington's intent to influence DKB, the gov-
ernment introduced the evidence of Seiichi Chiba, the DKB
loan officer responsible for the relevant loans. Chiba testified
that DKB looked to the borrower's affidavits to ensure that
there was no default under the terms of the loan. Chiba further
testified that DKB relied on the veracity of the borrower's
affidavits, that the net worth requirement was important to
DKB, and that as soon as he learned Symington was in default
under that requirement, he had to obtain special permission to
continue the loan. Based on this evidence of the importance
of the $4,000,000 requirement to DKB, a rational juror could
have concluded that by submitting borrower's affidavits
claiming to have met the requirement, Symington intended to
influence DKB not to declare the loan in default. Indeed,
Symington submitted the borrower's affidavits for the pur-
pose of influencing DKB to continue to disburse funds.


[11] We find, therefore, that there was sufficient evidence
to convict Symington on counts 13 to 15.


B.

In its cross-appeal, the government contends that the dis-
trict court erred in granting Symington a post-verdict judg-


                               6637


ment of acquittal on count 11. Like counts 13 to 15, that count
also charged Symington with violation of 18 U.S.C.S 1014.
Count 11 charged that in a loan extension agreement with
Valley National Bank (VNB) dated June 24, 1991, Symington
knowingly represented that his personal financial statement of
December 31, 1990 was true and accurate, even though he
knew that the statement was false. The jury voted to convict
Symington on count 11, but the district court found insuffi-
cient evidence to support the conviction. Our mode of review
here is the same as for counts 13 to 15: reviewing the evi-
dence in the light most favorable to the government, we ask
whether any rational trier of fact could have found Symington
guilty on count 11 beyond a reasonable doubt.


In November, 1989 Symington signed a loan agreement
with VNB for a loan of just under $900,000, to be repaid by
May 30, 1991. In the agreement Symington attested that "the
financial statement delivered to Bank by Borrower[Syming-
ton] is true, complete and correct in all respects and fairly
presents the financial condition of Borrower as of the date
hereof, and from the date of such financial statement until the
date hereof, there has been no material change in the financial
condition of the subject thereof." The loan agreement did not
specify a date for the "financial statement delivered to Bank
by Borrower," but the last financial statement delivered to
VNB was Symington's December 31, 1988 financial state-
ment (the 1988 statement). The loan agreement elsewhere
provided that Symington would provide VNB with annual
financial statements, and that he would maintain a net worth
of not less than $4,000,000. Thus on May 8, 1990 Symington
provided VNB with his December 31, 1989 financial state-
ment (the 1989 statement), and on May 14, 1991 he submitted

his December 31, 1990 statement (the 1990 statement). It was
proved at trial that the 1990 statement was materially false,
and that Symington falsely represented its accuracy to VNB
when he submitted it.10
_________________________________________________________________
10 Symington was charged and convicted on a separate S 1014 count for
submitting his false 1990 statement.


                               6638


VNB granted Symington a short extension of the 1989 loan
in June, 1991. Paragraph 5 of the extension agreement pro-
vided that Symington "hereby reaffirms to Bank the accuracy,
as of the date hereof, of all of the respective representations
and warranties made by him in the Note and Loan
Agreement." Count 11 charged that in signing the extension
agreement, Symington falsely represented the accuracy of his
1990 statement. However, the 1990 statement was not a
"representation . . . made by [Symington] in the Note and
Loan Agreement." The original loan agreement referred to a
"financial statement delivered to Bank." Since that agreement
was signed on November 21, 1989, by its terms it cannot have
referred to Symington's 1990 statement, since it did not yet
exist. Thus, the loan extension agreement made no reference
to the veracity of the 1990 statement. It merely reaffirmed
Symington's representation that the statements made in the
original loan agreement, including the 1988 statement submit-
ted in conjunction with its signing, were accurate, as of the

time they were made. Because a rational juror could not have
found that the extension agreement referred to the 1990 state-
ment, we affirm the district court's grant of judgment of
acquittal on count 11. Symington may not be retried on that
count.


IV.

The government also appeals from the district court's dis-
missal of 11 mistried counts for violation of the Speedy Trial
Act, 18 U.S.C. SS 3161-74. On September 13, 1997, the jury
returned its verdict and announced that it was deadlocked on
11 counts. The district court declared a mistrial as to those
counts (the mistried counts). Neither party acted further on the
mistried counts until Symington's sentencing on February 2,
1998, when Symington moved for dismissal under the Speedy
Trial Act. The district court granted the motion and dismissed
the mistried counts without prejudice. We review questions of
law under the Speedy Trial Act de novo. See United States v.
George, 85 F.3d 1433, 1436 (9th Cir. 1996).


                               6639


[12] The Speedy Trial Act provides that "if the defendant
is to be tried again following a declaration by the trial judge
of a mistrial . . . the trial shall commence within seventy days
from the date the action occasioning the retrial becomes
final." 18 U.S.C. S 3161(e). Time began to run under this pro-
vision on September 3, 1997. Thus, since more than 70 days
elapsed between September 3, 1997 and February 2, 1998
when Symington moved to dismiss the mistried counts, dis-
missal was required unless the Speedy Trial Act should have
been tolled for some or all of that interval. As to such tolling,
S 3161(h) provides, in pertinent part:


      The following periods of delay shall be excluded in
      computing the time within which . . . the trial . . .
      must commence:


      (1) Any period of delay resulting from
      other proceedings concerning the defen-
      dant, including but not limited to --


       . . .

       (F) delay resulting from any pretrial
      motion, from the filing of the motion
      through the conclusion of the hearing on,
      or other prompt disposition of, such
      motion;


       . . .

       (J) delay reasonably attributable to any
      period, not to exceed thirty days, during
      which any proceeding concerning the
      defendant is actually under advisement
      by the court.


18 U.S.C. S 3161(h).

                               6640


When the jury announced its verdict on September 3, 1997,
Symington moved for an extension of time (the extension
motion) in which to file a post-trial motion for judgment of
acquittal or new trial as to the counts on which the jury voted
to convict. The district court took that motion under advise-
ment and granted it on September 5, 1997. The two days from
September 3 to September 5 were excludable from Speedy
Trial Act calculations under S 3161(h)(1)(J) as time during
which a "proceeding concerning the defendant[was] actually
under advisement by the court." Symington filed his post-trial
motion for judgment of acquittal (the post-trial motion) on
October 10, 1997. The district court heard argument on the
motion on December 1, 1997, and took the matter under
advisement until issuing an order resolving it on January 20,
1998. Even excluding the time from September 3 to 5, the
Speedy Trial Act's 70-day period had passed well before the
district court took the post-trial motion under advisement on
December 1, 1997.


The government argues, however, that the entire period
from September 3, 1997 (when Symington filed his extension
motion) to January 20, 1998 (when the court rule on Syming-
ton's post-trial motion) should be excluded because it was a
"period of delay resulting from other proceedings concerning
the defendant." 18 U.S.C. S 3161(h)(1). The government cor-
rectly notes that "other proceedings" is not limited to those
expressly listed in S 3161(h)(1). See United States v. Lopez-
Espindola, 632 F.2d 107, 110 (9th Cir. 1980) ("the `including
but not limited to' language makes it clear that Congress did
not intend to restrict the meaning of `other proceedings' to
those specifically ventured."). Accordingly, the government
maintains that Symington's post-trial motion was an unenum-
erated "proceeding[ ] concerning defendant" under
S 3161(h)(1), and that the entire pendency of the motion
should be excluded from Speedy Trial Act calculations.


[13] The government's argument is foreclosed by our deci-
sion in United States v. Tertrou, 742 F.2d 538 (9th Cir. 1984).


                               6641


In Tertrou, we distinguished between pre-trial and post-trial
motions:


      Under section 3161(h)(1)(F), any period of delay
      resulting from a pre-trial motion is excluded from
      the time of the filing of the motion through its dispo-
      sition. Other types of proceedings not enumerated,
      such as post-trial motions, are cause for exclusion of
      the time that the matter is under advisement. See 18
      U.S.C. S 3161(h)(1)(J).


Id. at 539. In Tertrou, a mistrial was first declared on all
counts. The defendant subsequently filed a motion for judg-
ment of acquittal on the mistried counts. The motion was still
pending 70 days later, when the government initiated retrial
proceedings. The district court allowed the retrial, treating
defendant's post-trial motion as a pre-trial motion for Speedy
Trial Act purposes and excluding the entire period during
which the motion was pending. We reversed, holding that
post-trial motions are covered only by S 3161(h)(1)(J).
Accordingly, "only the period that [a post-trial] motion is
under advisement is excluded." Id. at 539.


[14] Tertrou controls our treatment of the issue here.11
Under Tertrou, the pendency of Symington's post-trial motion
_________________________________________________________________
11 We reject the government's attempt to distinguish Tertrou on the
grounds that the post-trial motion in that case involved mistried counts,
whereas Symington's post-trial motion related to counts on which he had
been convicted. We find no indication in Tertrou that its holding ought to
be so limited. Moreover, if the factual distinction between Tertrou and this
case is of any consequence, it supports Symington's position. Tertrou held
that even though the post-trial motion involved the same claims to which
the Speedy Trial Act applied, the pendency of the motion did not toll the
70-day clock except as provided in S 3161(h)(1)(J). Here, the relationship
between Symington's post-trial motion and the mistried counts is more
attenuated, since the post-trial motion did not involve the mistried counts.
If the pendency of a motion involving the very claims to which the Speedy

Trial Act applies cannot toll the 70-day clock, there is no justification for
tolling the clock while a less closely related motion is pending.


                               6642


was not excludable under S 3161(h)(1), and the district court
properly dismissed the mistried counts.


V.

Because the record evidence discloses a reasonable possi-
bility that the impetus for Juror Cotey's dismissal was her
position on the merits of the case, we hold that her dismissal
was improper. Accordingly, we REVERSE Symington's con-
viction and VACATE his sentence.12 We AFFIRM the district
court on the other issues reached herein. Counts 13 to 15 may
be among the counts on which Symington is retried; count 11
may not. The mistried counts were properly dismissed with-
out prejudice for violation of the Speedy Trial Act.


_________________________________________________________________

FITZGERALD, Senior District Judge, Concurring in part, dis-
senting in part.


I respectfully dissent with respect to Part II of the majority
opinion.


The opinion holds that "if the record evidence discloses any
reasonable possibility that the impetus for a juror's dismissal
stems from the juror's views on the merits of the case, the
court must not dismiss the juror." (second emphasis added).
The opinion then rejects the trial judge's findings respecting
Juror Cotey, focuses on two isolated comments from the
jurors, speculates as to their meaning, and concludes that
Juror Cotey's views on the merits of the case provided the
impetus for her removal. Although I agree with the standard
the opinion has established, in my view, the record does not
support the opinion's conclusion with respect to that standard.
_________________________________________________________________
12 Because we reverse Symington's conviction and vacate his sentence
on this ground, we do not reach the other issues raised by Symington and
the government on appeal.


                               6643


The record reveals that on August 19, 1997, the trial court
convened a meeting in chambers with Mr. Schindler and Mr.
Dowd, the attorneys for the government and defendant, to dis-
cuss a note from the jury, which read:


       We, the jury, respectfully request that this infor-
      mation be kept confidential.


       We have earnestly attempted to follow your last
      directive to continue with our deliberations. How-
      ever, the majority of the jurors sincerely feel that the
      juror in question cannot properly participate in the
      discussion with us.1


       Reasons: Inability to maintain a focus on the sub-
      ject of discussion.


       Refusal to discuss views with other jurors.

       All information must be repeated two to three
      times to be understood, discussed, or voted on.
      Immediately following a vote, the juror cannot tell
      us what was voted.


       We question the ability to comprehend and focus
      on the information discussed.


       This is the same juror of our last communication.2
_________________________________________________________________
1 Although Juror Cotey was not identified as the "juror in question," her
identity is obvious at this point in the proceedings.
2 The jury had previously sent a note to the trial judge stating: "Your
Honor, we respectfully request direction. One juror has stated their final
opinion prior to review of all counts." The trial court, after consultation
with the attorneys, reminded the jury of its duty to deliberate. The wording
of the trial judge's response to the jury is nearly identical to instruction 7.1
of the Ninth Circuit Manual of Model Criminal Jury Instructions. The
instruction was also found at page 68 of the jury instructions given in this
case.


                               6644


       We have carefully read the instructions from the
      Court and we feel that page 68, paragraph 3,
      addresses our concerns.3


       Bill Carlson, foreperson.

The jury note indicated that the jury had earnestly
attempted to continue deliberations in accordance with the
trial court's instructions in response to the previous note.
However, the majority of the jurors now were of the opinion
that one of their members could not properly participate in
deliberations.


The trial court and attorneys agreed that it was necessary
for the court to make a determination on whether Juror Cotey
was incompetent or simply refused to deliberate according to
the court's jury instructions. Accordingly, Presiding Juror
Carlson, was summoned to chambers. Prior to questioning
Juror Carlson, the trial court carefully stated:
_________________________________________________________________
3 An objective and careful analysis of the August 19 note discloses that
the jury was concerned with the ability of Juror Cotey to comprehend and
focus on the issues before the jury. The concern with Juror Cotey's ability
arose from her conduct in the course of deliberations. The case now before
us may be distinguished from United States v. Brown, 823 F.2d 591 (D.C.
Cir. 1987). In Brown, the court received a note from a juror in which the
juror indicated he could not discharge his duties as a juror. Upon inquiry
by the court, the juror disclosed that he could not agree with the way the
RICO conspiracy act reads. The court discharged the juror on finding that

he could not follow the law and thus could not discharge his duty as a
juror. On appeal, the D.C. Circuit concluded that dismissal of the juror
stemmed from the juror's view on the sufficiency of the evidence offered
by the government at trial and the juror should not have been dismissed.
In the present case, the trial judge acknowledged that no juror should yield
a thoughtfully held position simply to arrive at a verdict, but dismissed
Juror Cotey because she was unwilling or unable to deliberate with her
colleagues. In other words, Juror Cotey was not dismissed because of her
views about the evidence, but because she was unwilling or unable to par-
ticipate in deliberations.


                               6645


      [A]t the outset, let me make one thing clear. As we
      discuss whatever we discuss, one thing we don't
      want to know is anything about how the jury stands
      on any of the substantive issues that are presented to
      you. So it's important that you not discuss in any
      sense or reveal in any way to us how the jury is pro-
      ceeding substantively with the issues that are before
      you for your consideration. But we, of course, need
      to discuss with you the matters that you raised in
      your communication.


Juror Carlson was then asked if Juror Cotey was unable or
unwilling to accomplish her responsibilities as a juror, and he
responded that Juror Cotey's ability, not willingness, was the
problem. Juror Carlson stated further that Juror Cotey never
seemed to pay attention and that fellow jurors were suspicious
of her problems with concentration, memory, and other abili-
ties. Juror Carlson explained that Juror Cotey would enter into
rambling discourses, was unable to remember what had just
been discussed, and would give answers unrelated to ques-
tions asked of her. Juror Carlson also stated that the problems
happened repeatedly, despite the jurors' efforts to explain to
Juror Cotey exactly what they were discussing.


When asked by defense counsel Dowd if the problems
occurred because Juror Cotey had rendered final opinion and
was not going to cooperate anymore, Juror Carlson responded
that it was "hard to say" but that the jury had tried to share
information openly and Juror Cotey's statements "made no
sense." Juror Carlson added that the jury tried to focus on
deliberating, but it wasn't "functioning that way " and that he
wondered if Juror Cotey wasn't "too old to keep up."


Government counsel Schindler then stated: "Just so it's
clear, the answers that you got back seemed to not make sense
even to the question or what was going on in this note?" Juror
Carlson responded: "Correct. And that was our concern." The
court then asked: "Your perception of the reason is not that


                               6646


[Juror Cotey] has made up . . . her mind and just doesn't want
to talk about it further, but is something else, would you say?"
Juror Carlson responded: "Yes," and then again described
Juror Cotey's rambling, "off the wall," participation in discus-
sions.


Juror Carlson was excused and the trial court and attorneys
discussed whether they should speak with Juror Cotey. Mr.
Dowd stated that she appeared cogent and coherent during
voir dire. The judge's law clerks then informed the judge that
Juror Cotey needed assistance from another juror when asked
to return a copy of an exhibit, was confused as to whether she
was an alternate or regular juror, and needed help completing
the lunch menu. After further discussion, the trial court
elected to speak with Juror Cotey.


Juror Cotey was then brought into the judge's chambers
and questioned. The governments' attorney found her answers
non sequiturs and suggested that she be excused. Defense
counsel, however, disagreed, saying that Juror Cotey
answered the questions well. The court then agreed to ques-
tion the remaining jurors.4


Juror Tejada stated that Juror Cotey would ask questions
unrelated to the discussion, would be uncertain about which
count they were discussing, would go off on tangents unre-
lated to the discussion, and would mumble about "something
else" and go "off on her own." Juror Tejada also explained
that Juror Cotey displayed an inability to recall topics cur-
rently under discussion, but would remember topics discussed
the previous week.


Juror Witter stated that one juror began to explain to Juror
Cotey everything that was happening, that Juror Cotey had a
_________________________________________________________________
4 Each juror, including Juror Cotey, was carefully admonished not to dis-
cuss the merits of the case nor any of the juror's positions on the case, but
to confine their comments to issues raised in the note.


                               6647


lot of questions, and that the jurors had to refresh her mem-
ory. Juror Witter stated further that after Juror Cotey would
vote on an issue she would say she was "bullied " and it
wasn't her vote and that although Juror Cotey said that "her
mind was made up," she often changed her mind after voting.
The trial judge asked Juror Witter if there was anything the
court might do to help alleviate this difficulty. Juror Witter
responded:


       Well, I said there's probably the only things we
      can do and that would be completely go through the
      process like you instructed us to, but I do know what
      the outcome is going to be, other than a few items
      that we -- we do mutually agree upon. And that
      would be an undecided vote, a hung jury or I don't
      know -- if there was a replacement person that can
      come in, I don't know the process of how that works.


Government counsel Schindler suggested that the trial court
might inquire if Juror Witter agreed with the note and if the
note was an accurate description from Juror Witter's perspec-
tive. Juror Witter responded: "Yes, I do."


Juror Smith testified that Juror Cotey wandered off looking
for exhibits or testimony from someone that was unrelated to
the count under discussion. Juror Smith stated that after one
vote had been taken, Juror Cotey was asked if she understood
what had just occurred, and Juror Cotey said "yes." She was
then asked if she knew what she had voted on, and said "no."
Juror Smith stated several times that Juror Cotey did not
understand what the jury was doing. When asked by the judge
if it was an issue of Juror Cotey's ability or willingness to
deliberate, Juror Smith stated that it involved her ability.


Juror Seaman testified that Juror Cotey would wander off
the topic and alluded to things that had nothing to do with the
discussion. Juror Seaman stated that Juror Cotey did not
understand the evidence and needed to have another juror


                               6648


explain things to her after an issue had already been dis-
cussed. Juror Seaman stated that Juror Cotey would fre-
quently "drift off" and would refuse to discuss her views.


Juror Streeter testified that Juror Cotey refused to discuss
her views and was unable to put her views into words. Juror
Streeter also testified that Juror Cotey could not focus on the
subject under discussion, could not recall the topic under dis-
cussion, and would ask questions about different topics than
the one under discussion. Juror Streeter stated that many of
the jurors felt that Juror Cotey was unable to comprehend
what they were doing. Juror Streeter stated further that Juror
Cotey had taken a position on the counts before they had been
discussed.


Juror Thompson stated that Juror Cotey was not attentive
and could not really talk about the subject at issue. Juror
Thompson stated further that Juror Cotey would say things
that had no meaning to the subject they were discussing and
that it seemed like she was not comprehending what the jury
was talking about or doing. Juror Thompson also stated that
everything needed to be explained to Juror Cotey three or four
times.


Juror Robinson stated that Juror Cotey was unable to com-
prehend, could not follow along, and her comments had
"nothing whatsoever" to do with the subject matter under dis-
cussion. Juror Robinson stated further that Juror Cotey didn't
seem to have any idea of what the jury was doing. Juror Rob-
inson also stated that they tried to help Juror Cotey
"individually in detail" and that Juror Cotey did not want to
participate. When asked if Juror Cotey behaved in the
described manner because she had reviewed all the evidence
and come to a decision, Juror Robinson stated "No, that isn't
the case at all . . . she certainly has not reviewed all the
evidence."


Juror Pettes stated that the jury note in question was "pretty
accurate" because Juror Cotey didn't know what was being


                               6649


discussed even if it was explained two or three times. Juror
Pettes stated further that in the beginning, Juror Cotey did not
know the difference between the indictment and the instruc-
tions. When asked if Juror Cotey's problems involved a will-
ingness to deliberate or ability to deliberate, Juror Pettes
stated that Juror Cotey was not comprehending everything
and made decisions without reasons to support them. Juror
Pettes said it was "scary" when, after going over something
several times and voting, Juror Cotey could not say what they
had just voted on.


Juror Hartle stated that he agreed with what was in the note.
Juror Hartle stated further that Juror Cotey did not concentrate
on the issues, was not aware of what count was under consid-
eration, and could not say what issue had just been voted on.
Juror Hartle felt that Juror Cotey wasn't consistent, changed
her mind, and did not comprehend what was happening.


Juror Bamond stated that Juror Cotey had "tangents off
line," asked what the jury was talking about after a discussion
was completed, and expressed "philosophies that go straight
out somewhere in left field." Juror Bamond stated further that
Juror Cotey was unsure of what had been voted on and what
count was being discussed. Juror Bamond also intimated that
after a vote Juror Cotey would say "I didn't vote that way."
Juror Bamond thought Juror Cotey was trying to "change the
system," and that Juror Cotey, bothered the jury with "stupid
points that don't make any sense." Juror Bamond stated that
Juror Cotey "doesn't comprehend sometimes, doesn't know
where we are sometimes." Juror Bamond stated that after dis-
cussing evidence for hours, Juror Cotey would say,"What
document is that? Where did you see that?," and the discus-
sion would start all over.


After the final juror appeared, the trial judge heard argu-
ments by the attorneys. Mr. Schindler argued that Juror
Cotey's fellow jurors all said that Juror Cotey was unable to
comprehend and affirmed that the contents of the note were


                               6650


accurate. He argued that Juror Cotey did not have an
honestly-held belief; rather, she "flip-flopped and doesn't
recall what she voted or votes and then switches her mind."
Finally, he argued that jurors consistently described Juror
Cotey as a person who doesn't "quite get it."


Mr. Dowd argued that Juror Cotey was a lucid and coherent
juror who had reached a conclusion that the other jurors didn't
like. Mr. Dowd also argued that Juror Cotey did comprehend
and perhaps comprehended more quickly than the other
jurors. Mr. Dowd argued further that Juror Cotey may have
been a "pain in the neck" but that she was entitled to ask
questions.


The trial court then made findings, and in so doing, noted
that Juror Cotey's responses to the court's questions "were
not truly responsive to the question asked, which in some
respects corroborated some of the comments of the presiding
juror." The court observed that all jurors concurred in the note
sent by the presiding judge. The trial judge found that:


      Juror [Cotey] is either unwilling or unable to deliber-
      ate with her colleagues. More specifically, the facts
      upon which the Court makes that finding are the
      comments of the other 11 jurors, none of whom
      report any acrimony or personal difficulties with
      Juror [Cotey], but all of whom confirm what appears
      to them to be either an unwillingness or an inability
      to join with them in deliberations in accordance with
      the Court's instructions, specifically that is to jointly
      review the evidence and to confer with colleagues
      concerning the evidence in an effort to reach their
      decisions.


       It is, or course, the very essence of the jury pro-
      cess that jurors not only may hold differing views,
      but are instructed to form their views and opinions


                               6651


      and to not waiver from them if they are held after
      engaging in thoughtful deliberation.


       It is indeed the safeguard of the jury system that
      there are 12 independent views. And the instructions
      direct and, of course, it is fundamental that no juror
      should yield a thoughtfully-held position simply to
      arrive at a verdict. But there has been nothing stated
      by any of the jurors that would indicate that that is
      the situation here.


       The Court and counsel were mindful of that prob-
      lem and I hope were -- I hope the Court was appro-
      priate in trying to assure that was not that Juror
      [Cotey] had a differing view that was her opinion
      after considering the evidence and that she was, as
      instructed, simply not yielding that view. But when
      inquiry went to that subject, it was the report of her
      fellow jurors that that was not the issue, but that
      instead, she would not participate in the process.


       Beyond that which would tend to indicate an
      unwillingness to deliberate, and the Court does not
      make that finding. As indicated earlier, it's either an
      unwillingness or an inability to deliberate. And it's
      unclear to the Court as to what that cause might be.
      But virtually without exception, the other jurors
      reported that she was unable to follow the discus-
      sions, was apparently having an inability to compre-
      hend the topic then under discussion, was not
      participating in the discussion process, was lacking
      in concentration and awareness, was apparently
      unable to follow the discussion, would raise matters
      that by their subject matter appeared to not relate to
      the topic under discussion.


       It is not lightly that the Court comes to this con-
      clusion, but it comes to it because it believes that the


                               6652


      evidence is clear in directing the finding that it has
      made. Accordingly, the court will excuse Juror
      [Cotey] . . . for just cause for being either unwilling
      or unable to participate in the deliberative process in
      accordance with the instructions of the court.


The trial court's findings focus exclusively on Juror
Cotey's ability to function as a juror, and several times the
trial court specifically states the Juror Cotey's dismissal is not
based on her position on the merits. In fact, nothing in the
findings alludes to Juror Cotey's position on the merits of the
case, and nothing in the findings suggests that the impetus for
Juror Cotey's removal came from her position on the merits.
The trial court's findings are fully supported by the record
made with the jurors' interviews.


Nevertheless, the opinion finds that "there was considerable
evidence to suggest that the other jurors' frustration with
[Juror Cotey] derived primarily from the fact that she held a
position opposite to theirs on the merits of the case." If such
"considerable evidence" exists, the opinion fails to disclose it.
Rather, from the one hundred one pages of transcripts on the
issue, the opinion cites two partial sentences from two of the
jurors. The opinion states that Juror Witter "asked the district
judge to dismiss [Juror] Cotey" to avoid a hung jury, but a fair
reading of the transcripts, which I quoted above, reveals that
Juror Witter made no such specific request. The opinion has
taken Juror Witter's comment out of context, and ignored the
bulk of Witter's testimony which supports the trial judge's
ultimate decision. The opinion also references Juror
Bamond's comment that because of Juror Cotey, the jury was
"blocked and blocked and blocked." Juror Bamond's partial
statement, however, is subject to various interpretations, such

as the jury was blocked from deliberating, or blocked from
considering other counts, or blocked from voting on counts.
It is pure conjecture to suggest that the statement means that
the jury wanted Juror Cotey dismissed because of her position
on the merits. In view of the extensive record and the trial


                               6653


judge's findings, these isolated statements simply fail to
establish any reasonable possibility that the impetus for Juror
Cotey's dismissal stemmed from her views on the merits of
the case. Rather, to reach such a conclusion requires specula-
tion.


The opinion also refers to a statement by Juror Cotey that
she "can't agree with the majority all the time, at least
temporarily." Whatever that statement means, it could not
have been relied upon by the trial judge, unless he considered
it as evidence of Juror Cotey's inability to express her views.
In short, the three partial statements do not amount to
"considerable evidence" that the jurors' frustration with Juror
Cotey derived from her position on the merits.


The trial judge, based upon the jurors' interviews and his
own observations, found that Juror Cotey could not compre-
hend the issues, lacked concentration and awareness, was
unable to follow discussions, and discussed unrelated issues.
In contrast, the opinion, rather than addressing the bulk of the
jurors' testimony, simply disregards it, and concludes without
support from the record that even though each of the jurors
may have thought their difficulties did not stem from Juror
Cotey's position on the merits, they actually did. I suggest
that the opinion's reasoning rests on speculation and ignores
the fact that the trial judge "is in the best position to evaluate
the jury's ability to deliberate." Beard, 161 F.3d at 1194
(internal quotation marks omitted).


The opinion engages in further speculation when it suggests
in footnote 7 that if Juror Cotey had agreed with the other
jurors on all points, they would never have noticed her inabil-
ity to explain her views. This bit of conjecture ignores the
jurors' testimony that at times Juror Cotey did agree with
them, but then changed her mind and couldn't explain why.
The other jurors' frustration with Juror Cotey would have
arisen regardless, because the difficulties stemmed from Juror
Cotey's need to have issues explained repeatedly, asking


                               6654


questions unrelated to the topic, asking to review issues
repeatedly, and inability to focus on the topic at issue. As the
jurors testified and the trial judge found, these problems arose
solely from Juror Cotey's inability to comprehend the topics
at issue and are completely unrelated to her position on the
merits.


The opinion also states in footnote 8 that "because it was
reasonably possible that the problems all stemmed from the
other jurors' disagreement with [Juror Cotey's ] position on
the merits, it was error to continue the case without her."
Again, this statement ignores the clear weight of the evidence
and ignores the trial judge's findings. The statement also
ignores the judge's admonition to each juror that they were
not to discuss the merits of the case during the interviews. The
opinion does, in fact, commend the trial judge for scrupu-
lously avoiding any discussion of the jurors' views on the
merits when he interviewed them, but then finds a reasonable
possibility that the impetus for dismissing Juror Cotey
stemmed from her views on the merits. Only by second guess-
ing the trial judge and by ignoring his opportunity to evaluate
Juror Cotey's ability to deliberate, can the opinion conclude
that the impetus for dismissing her stemmed from her position
on the merits.


The opinion suggests in footnote 5 that "reasonable
possibility" may be likened to the standard of "reasonable
doubt." Reasonable doubt, as defined in Ninth Circuit Manual
of Model Criminal Jury Instruction No. 3.3, is doubt that
leaves one "firmly convinced that the defendant is guilty."
Thus we must be "firmly convinced" that the impetus for dis-
missing Juror Cotey was her position on the merits.
"Reasonable possibility" then, like "reasonable doubt," must
be "based upon reason and common sense and is not based
purely on speculation. It may arise from a careful and impar-
tial consideration of all the evidence, or from lack of
evidence." Id. Here, a careful consideration of "all of the
evidence," coupled with the fact that the trial judge is in the


                               6655


best position to evaluate the jury's ability to deliberate, cannot
leave one "firmly convinced" that the impetus for dismissing
Juror Cotey was her position on the merits. Rather, it is only
through speculation, based on a limited portion of the evi-
dence taken out of context, that the opinion reaches its con-
clusion.


On my review of the record, I conclude that the evidence
fails to support the opinion's conclusion that the impetus for
removing Juror Cotey was her position on the merits. The
record is clear and speculation is unnecessary. In light of the
overwhelming evidence, the trial judge could not have abused
his discretion in dismissing Juror Cotey. See Beard, 161 F.3d
at 1193.


For these reasons, I respectfully dissent with respect to Part
II of the majority opinion.


                               6656


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