United States of America v. Nicholas Nnaji, Freddie Evans

* Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
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United States Court of Appeals
Fifth Circuit
F I L E D
July 16, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-20671
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
NICHOLAS NNAJI, FREDDIE EVANS
Defendants - Appellants
Appeals from the United States District Court
for the Southern District of Texas
No. H-01-CR-472-2
Before KING, Chief Judge, and HIGGINBOTHAM and BARKSDALE, Circuit
Judges.
PER CURIAM:*
Defendants Nicholas Nnaji and Freddie Evans appeal their
convictions, arguing that the district court erred in dismissing
a juror during jury deliberations. We review a district court’s
decision to dismiss a juror during deliberations for an abuse of

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discretion. See, e.g., United States v. Edwards, 303 F.3d 606,
631 (5th Cir. 2002), cert. denied, 123 S. Ct. 1272 (2003).
Further, we will not overturn a district court’s decision to
remove a juror unless the defendant is prejudiced, and we will
only find prejudice “if the juror was discharged without factual
support or for a legally irrelevant reason.” Id. (quoting United
States v. Virgen-Moreno, 265 F.3d 276, 288 (5th Cir. 2001), cert.
denied, 534 U.S. 1095 (2002)).
The district court did not abuse its discretion in this
case. A district court may dismiss a juror for good cause and
permit a jury of eleven jurors to return the verdict. See FED.
R. CRIM. P. 23(b)(3). A juror’s unwillingness to deliberate gives
a district court good cause for removal. See, e.g., Edwards, 303
F.3d at 631-34 (affirming dismissal of a juror who refused to
follow instructions and displayed a lack of candor to the court);
United States v. Baker, 262 F.3d 124, 128-32 (2d Cir. 2001)
(affirming dismissal of juror who refused to deliberate and
“sa[id] that the evidence is not going to change her mind”). In
dismissing the juror in this case based on his unwillingness to
deliberate, then, the district court did not use a legally
irrelevant reason.
Despite the defendants’ arguments to the contrary, the
district court’s factual finding that the dismissed juror refused
to deliberate is not clearly erroneous. There is ample evidence
to support the fact that the juror simply would not deliberate:

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juror after juror testified that the dismissed juror read a book
during deliberations, refused to review the evidence, refused to
participate in discussions, and refused to vote on the ultimate
question of guilt or innocence.
For the foregoing reasons, the defendants’ convictions are
AFFIRMED.

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