United States v. 2020-08-27 | 17-10429 | USA V. DAVID LITWIN | precedential | opinion |

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF
AMERICA,
Plaintiff-Appellee,

v.

DAVID A. LITWIN,
Defendant-Appellant.
Nos. 17-10429
18-10279
18-10322
19-10007

D.C. No.
2:11-cr-00347-KJD-CWH-2

OPINION

Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding

Argued and Submitted March 23, 2020
San Francisco, California

Filed August 27, 2020

Before: Ronald M. Gould, Morgan Christen, and
Daniel A. Bress, Circuit Judges.

Opinion by Judge Bress

2 UNITED STATES V. LITWIN

SUMMARY
*

Criminal Law

The panel vacated David Litwin’s convictions and
sentence for conspiracy to distribute a controlled substance
and eight counts of distribution of a controlled substance,
and remanded for a new trial, in a case in which the panel
confronted the question whether a district court erred in
dismissing a juror, hours into jury deliberations following a
lengthy criminal trial.

Under the unique facts of this case, and notwithstanding
the substantial resources expended, the panel was
constrained to conclude that the district court erred in
dismissing the juror. The panel wrote that the district court’s
determination that the juror harbored “malice toward the
judicial process” is not supported and cannot provide the
basis for the juror’s dismissal. The panel wrote that while
the district court also cited the juror’s alleged refusal to
deliberate, the panel was firmly convinced there was a
reasonable possibility that the juror’s dismissal stemmed
from her views on the strength of the government’s
prosecution. The panel based its decision on the specific and
uncommon circumstances of this case, including the district
court’s decision to strike the juror, a former criminal defense
lawyer, after receiving a complaint from other jurors and
without clarifying the juror’s alleged confusion about a jury
instruction that applied to all charges; and that the district
court removed the juror without giving the original jury any

*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

UNITED STATES V. LITWIN 3

further instructions or allowing it any further opportunity to
deliberate. The panel recognized that the district court faced
a trying situation with a hold-out juror after devoting many
months to a taxing trial, but wrote that a single juror’s ability
to affect the outcome of a long-running prosecution is an
inevitable possibility given the Sixth Amendment right to a
unanimous jury verdict that criminal defendants are
afforded.

COUNSEL

Lisa A. Rasmussen (argued), Law Office of Lisa Rasmussen
PC, Las Vegas, Nevada, for Defendant-Appellant.

William R. Reed (argued), Assistant United States Attorney;
Elizabeth O. White, Appellate Chief; Nicholas A. Trutanich,
United States Attorney; United States Attorney’s Office,
Reno, Nevada; for Plaintiff-Appellee.

OPINION
BRESS, Circuit Judge:
We confront in this case the question whether a district
court erred in dismissing a juror, hours into jury
deliberations following a lengthy criminal trial. Dismissing
a juror based on her views of the strength of the
government’s case is an intrusion on the jury’s role and
violates the Sixth Amendment. But though the decision
must be made carefully, there are various reasons why a
district court may properly, and in its discretion, remove a
juror from service once the jury has begun deliberating.
Determining whether such a dismissal was a violation of the

4 UNITED STATES V. LITWIN

defendant’s constitutional right to a unanimous jury verdict,
or instead a permissible response to a juror’s recalcitrance,
bias, or incapacity, is a sensitive task. Because district courts
observe jurors first-hand, they are accorded considerable
deference in their handling of these issues.
Under the unique facts before us, however, and
notwithstanding the substantial resources expended in this
case, we are constrained to conclude that the district court
erred in dismissing a juror. The district court’s
determination that the juror harbored “malice toward the
judicial process” is not supported and cannot provide the
basis for the juror’s dismissal. And while the district court
also cited the juror’s alleged refusal to deliberate, based on
the record in this case we are firmly convinced there was a
reasonable possibility that the juror’s dismissal stemmed
from her views on the strength of the government’s
prosecution.
We base our decision on the specific circumstances of
this case, which are uncommon and which this opinion will
describe in detail. These include the district court’s decision
to strike the juror, a former criminal defense lawyer, after
receiving a complaint from other jurors and without
clarifying the juror’s alleged confusion about a jury
instruction that applied to all charges. The district court also
removed the juror without giving the original jury any
further instructions or allowing it any further opportunity to
deliberate.
We recognize that the district court faced a trying
situation with a hold-out juror after devoting many months
to a taxing trial. But a single juror’s ability to affect the
outcome of a long-running prosecution is an inevitable
possibility given the Sixth Amendment right to a unanimous
jury verdict that criminal defendants are afforded. When that

UNITED STATES V. LITWIN 5

right clashes with an interest in producing the result that
most (but perhaps not all) jurors might reach, our law
requires that the former must prevail. While the removed
juror here may have disagreed with her peers on the strength
of the government’s case, that did not mean she thereby
acted in bad faith.
Cases challenging the dismissal of a juror are classically
fact-dependent. Our decision today is, and can only be,
based on the unique combination of circumstances presented
in this case. Although we do not do so lightly, we are
compelled to vacate the defendant’s convictions and
sentence and remand for a new trial.
I
A
On October 28, 2015, a grand jury indicted Dr. Henri
Wetselaar, a physician, and David Litwin, his “purported . . .
medical assistant,” on charges of conspiracy to distribute a
controlled substance and eight counts of distributing a
controlled substance. See 21 U.S.C. §§ 841(a)(1), (b)(1)(c),
846; 21 C.F.R. § 1306.04. Dr. Wetselaar was also charged
with money laundering, 18 U.S.C. § 1957, and improperly
structuring financial transactions, 31 U.S.C. §§ 5324(a)(3),
(d)(1)–(2). Litwin was separately charged with three counts
of making false statements to a government agency.
18 U.S.C. § 1001.
These charges arose from a lengthy law enforcement
investigation into Wetselaar’s Las Vegas-area medical
practice. The investigation, which began in 2010 and
included extensive use of undercover officers, revealed that
Wetselaar was prescribing large quantities of powerful and
addictive medications, such as Oxycodone and Xanax, often

6 UNITED STATES V. LITWIN

on a cash basis, after perfunctory patient examinations. For
a time, Wetselaar and Litwin also prescribed narcotics for
cash to large groups of supposed patients who would visit
private homes to meet with them.
Opening statements began on January 10, 2017. Due to
Wetselaar’s own health issues and his advanced age (he
turned 93 years old during the trial), the trial was conducted
only four days per week, stopping in the early afternoon each
day. The government’s evidence included recordings and
testimony from undercover agents; testimony from
“cappers” (individuals who posed as and recruited allegedly
fraudulent patients to obtain prescriptions for drugs that were
later sold on the street); and medical testimony regarding
acceptable pharmaceutical prescribing practices. In their
defense, Wetselaar and Litwin argued, among other things,
that they issued the prescriptions in good faith; that they
refused prescriptions to patients whose claims they doubted;
and that patients’ claims of subjective pain are difficult to
disprove.
1

B
Although many issues arose during trial and are
presented on appeal, our focus is on the district court’s
dismissal of Juror 5.
2
To understand our holding and
reasoning in this case, it is important to lay out in some detail

1
The government also brought charges against a pharmacy
manager, Jason Smith. The jury hung as to these charges and the district
court granted Smith’s post-trial motion for acquittal. Smith is not a party
to this appeal.
2
Juror 5 was originally known as Juror 6, but she became Juror 5
after another juror was excused. We will refer to her throughout this
opinion as Juror 5.

UNITED STATES V. LITWIN 7

the facts and circumstances that eventually led to Juror 5’s
dismissal. At times, this includes significant excerpts from
the transcript of proceedings in the district court.
We first discuss Juror 5’s voir dire and selection as a
juror, which later became relevant to her removal from the
jury. We then describe the issues that arose during jury
deliberations and the district court’s decision to dismiss
Juror 5.
1
As part of the juror selection process, Juror 5 appeared
for voir dire questioning on January 9, 2017. The
questioning, which the district court conducted in the
presence of counsel, revealed that Juror 5 had been a
practicing attorney in her native Philippines for 22 years.
Juror 5 estimated that half of her practice in the Philippines
was criminal defense. The other half was civil work (“any
civil matters”—“employment, labor, insurance”). For the
previous fourteen years, Juror 5 had “worked in the legal
profession” in Seattle and Las Vegas. At the time of voir
dire, she was a paralegal at Hall Jaffe & Clayton LLP, a Las
Vegas “insurance defense firm.” No party moved to strike
Juror 5.
The jury was empaneled this same day. After she was
excused for the day, Juror 5 notified her law firm that she
had been selected as a juror. That afternoon, Juror 5 sent an
email to Denise Saavedra, the courtroom administrator,
explaining that she could no longer serve as a juror. That
email read as follows:

8 UNITED STATES V. LITWIN

Ms. Saavedra,
I was selected as juror this morning in a
case under Hon. Judge Kent Dawson. Upon
our dismissal at past 1:00 pm, I immediately
notified my employer (Hall Jaffe & Clayton
LLP) about my selection as a juror. They
have never had a case where a staff of the
Firm has been selected as a juror (mine is the
first time), hence there is no policy in place
regarding salary while serving jury duty.
After a brief meeting with the HR
Department, I was advised just now – that
they can only pay up to 2 weeks of absence
by reason of my jury duty.
I cannot afford not to have my full salary
for 4 weeks (after the 1st 2 weeks of paid jury
duty). My significant other is retired without
any significant income and relies on my
regular income for our sustenance. Please
relay to the Hon. Judge Dawson that while I
wish to fulfill my civic duty, doing so will put
me in financial distress.
I intend to see you tomorrow, or the Hon.
Judge to explain my predicament – but I will
not be able to sit in for the rest of the jury
trial.
Sincerely,
[Juror 5]
(Emphasis in original).

UNITED STATES V. LITWIN 9

The district court addressed Juror 5’s email the next
morning. After reading the email into the record, the district
court informed counsel that it would decline Juror 5’s
request to be excused. The district court explained its
reasoning as follows:
My response to [Juror 5] is that her
commitment to this case is 16 hours per
week. That is two eight-hour days. If – if her
employer will pay her for a full two weeks of
salary, that means that it would be the
equivalent of four weeks of jury time, if she
doesn’t work overtime or go in on weekends.
I think she can do it. I’m not going to grant
her request. I’m considering bringing in one
of the partners of the firm, which has over
200 cases in federal court, and asking them if
they’re aware of this decision by the HR
department, but in the meantime, my
intention [is] to inform her that – that we
can’t release her because we will be down to
two alternates before we come out of the gate.
No counsel objected to the court’s proposed decision.
The court then brought in Juror 5 and explained its
decision to her. The court expressed sympathy with the
juror’s situation and irritation with her employer, and had the
following exchange with Juror 5:
THE COURT: [Juror 5], I have received
your e-mail that was sent to the courtroom
administrator and while I sympathize with
your situation with your employer, I cannot
let you go based on that. Had we known of
your situation, it is possible that you would

10 UNITED STATES V. LITWIN

have been excused from service but now that
we’re underway and no way of getting
additional jurors and we’ve had one juror
drop out already this morning who’s going to
be brought in, either voluntarily or by the
marshals we – we can’t afford to lose another
juror.
Your service is approximately 16 hours
per week on the jury. If the – if your law firm
is willing to pay you for your service up to
two full weeks, then this would – that would
cover you for four weeks of jury time,
because you’re only working a half a day here
or serving a half a day here and you can go to
work and do things there. Also, you have –
you have the possibility of working a little bit
into the evening. It would be a longer day for
you, but I’m confident you can do it. Many
of us, including the attorneys in this case,
spend 12 hours a day working on – on matters
related to this case. And, so, while I
sympathize with your situation, I’m going to
hold you to your service.
I would be happy to call in your firm.
I’m, frankly, quite surprised that your firm,
which has many cases pending in this Court,
would not cover you for the full term of your
service because I’m certain that they’ve
requested juries and enjoyed the benefits of
service by jurors much like yourself, but I – I
don’t want to call them in without alerting
you that I would do that because I don’t want

UNITED STATES V. LITWIN 11

to place you in a bad situation with your
employer.
Is there anything you would like to say?
JUROR NO. [5]: I do understand the
situation, Your Honor. I deeply regret I am
in this situation. I already told my employer
I will do my best. Right after the hearing –
the trial, when we are let go by 1:00 p.m. or
thereabouts, that I will drive to the west and
begin my work to cover whatever deadlines I
have currently and that means working on or
before 2 o’clock p.m. until whenever through
the night.
THE COURT: Okay. Well, I hope that
they’ll accept that because it’s illegal to
discharge someone because they take jury
service. So I hope we don’t get to that point.
I hope we don’t get to the point where I need
to call in the partners and have them stand
down in front of the Court and the press and
explain why they’re not more conducive to
jury service.
JUROR NO. [5]: I don’t think so, Your
Honor.
THE COURT: Okay.
JUROR NO. [5]: I think they do
understand that they cannot do that –
THE COURT: All right.

12 UNITED STATES V. LITWIN

JUROR NO. [5]: – or not to do that. But
I did offer my service to the firm right after
my jury service and I think they’re viewing
that more kindly.
THE COURT: Okay. Let me know if
there’s anything we can do –
JUROR NO. [5]: Yes, Your Honor.
Thank you.
THE COURT: – to assist you in being
treated appropriately.
JUROR NO. [5]: Thank you, Your
Honor.
THE COURT: Thank you.
2
Opening statements began later that same day, on
January 10, 2017. The trial required 35 trial days over a
period of over ten weeks. Closing arguments concluded on
the morning of March 22, 2017. The case was submitted to
the jury at approximately 9:40 a.m., and the jury began
deliberating that morning.
That day, the court received two notes from the jury on
different issues, including the proper interpretation of a jury
instruction. Approximately three hours into deliberations, at
12:51 p.m., the court received another written note signed by
Juror 8. The note read: “Jury cannot come to a decision. We
have a jur[or] that says no matter what, she will not change
her mind.” The court informed counsel that it would

UNITED STATES V. LITWIN 13

question Juror 8 to “attempt to determine whether this is a
genuine disagreement or just a refusal to deliberate.”
Once counsel returned to the courthouse, the court
explained its proposed plan, noting that it would first speak
with Juror 8 and then the juror who was the subject of the
written note. Counsel assented to the plan. Juror 8 was then
brought into the courtroom and informed the court that he
had dictated the note to another juror to write, and that Juror
8 had then signed it. In response to the court’s questioning,
Juror 8 confirmed that Juror 5 had said “No matter what, she
will not change her mind.” Before proceeding further, the
court “caution[ed]” Juror 8 that “I don’t want you to tell me
how the jury stands on the issue of the guilt or innocence on
any of the counts. I don’t want to hear that.”
After some back and forth confirming that the juror in
question was Juror 5, the court had the following exchange
with Juror 8:
THE COURT: ... [I]s the juror in
question making statements that would
indicate that she has a prejudice that will not
allow her to deliberate?
JUROR NO. 8: I would say yes.
THE COURT: Has she expressed –
verbally expressed a prejudice, or are you just
assuming there is one?
JUROR NO. 8: I would almost have to
assume it, but we tried multiple angles, and
she says “No matter what.”

14 UNITED STATES V. LITWIN

THE COURT: Okay. Is she, in your
opinion, refusing to listen to the evidence?
JUROR NO. 8: Yes.
THE COURT: Is she refusing to consider
the evidence?
JUROR NO. 8: Yes.
THE COURT: Is she refusing to consider
the views of her fellow jurors?
JUROR NO. 8: Yes.
THE COURT: Is she refusing to
participate in deliberations?
JUROR NO. 8: Yes.
At this point, Wetselaar’s counsel asked for a sidebar.
While defense counsel “appreciate[d]” that the court was
asking questions that paralleled the jury instructions, defense
counsel expressed concern that “there’s a leading nature to
them,” and suggested that the court ask more open-ended
questions. The government opposed that suggestion because
it could result in the court intruding on the jury’s discussions.
The court agreed: “That’s my concern is if we try to get into
what has happened in the three hours that the jury has been
deliberating, blow by blow, we’re going to unavoidably get
into the discussions of the jurors.” But the court explained
it would “ask [Juror 8] to give me an example of anything
she has said beyond what she has said already which is ‘no
matter what.’”

UNITED STATES V. LITWIN 15

At this point, the court and counsel also recognized
among themselves that the jury room was tense. Defense
counsel remarked that “you can tell there’s some emotion
there.” The court agreed: “It’s highly volatile in there,” and
“that’s been going on all day. You can hear the yelling.”
After further discussions with counsel about how to
conduct the questioning, the court resumed with Juror 8:
THE COURT: ... How early on in the
deliberations did the juror state that she
would not change her mind no matter what?
Early?
JUROR NO. 8: Very early.
THE COURT: Okay. Was it before the
jury considered the evidence; talked about
the evidence?
JUROR NO. 8: As the evidence was
rolled in, after we had already started
debating.
THE COURT: Okay. And once the
evidence came in, did the juror refuse to
consider the evidence at all or did she
consider it?
JUROR NO. 8: She completely refused.
THE COURT: In the outset?
JUROR NO. 8: From the outset.

16 UNITED STATES V. LITWIN

THE COURT: Okay. Anything else that
you can tell us, without going into the detail
of the deliberations? You already said she
stated she would not change her mind no
matter what.
JUROR NO. 8: Correct.
THE COURT: Any other indications that
– that she was refusing to consider the
evidence or the views of her fellow jurors?
Any other statements?
JUROR NO. 8: She said it’s her right to,
and that no matter what we say or do, it’s not
going to change her mind.
THE COURT: Has she expressed any
views about the law or bias that would
indicate an intent to nullify –
JUROR NO. 8: She –
THE COURT: – the law?
JUROR NO. 8: She seems to be confused
about one part on it.
THE COURT: Okay.
JUROR NO. 8: And we’ve attempted to
explain it and read it to her several times.
THE COURT: Okay.

UNITED STATES V. LITWIN 17

JUROR NO. 8: And she’s getting stuck
on one part of the sentence.
THE COURT: All right.
JUROR NO. 8: And not reading it as a
whole.
THE COURT: Okay. With respect to –
does that cover all – all of the charges or just
one charge?
JUROR NO. 8: All of the charges.
THE COURT: All of the charges. Okay.
JUROR NO. 8: And I asked her that, too.
THE COURT: Pardon?
JUROR NO. 8: I asked her that, too.
THE COURT: Okay.
At this point, Wetselaar’s counsel requested a sidebar
and asked the court to inquire of Juror 8 what portion of the
jury instructions was confusing Juror 5. The government
again objected because this would “delv[e] into the jury’s
conversations and deliberations,” and the court agreed.
Defense counsel then suggested that the court speak with
other jurors. Taking up the suggestion, the court asked Juror
8 to identify another juror who would not be too shy to speak
to the court. Juror 8 identified a few other jurors but also
indicated that the court could speak to “pretty much almost
any juror.”

18 UNITED STATES V. LITWIN

After further discussions with counsel, the court decided
to speak with Juror 10. Juror 10 was brought into the
courtroom and the court had the following exchange with
her:
THE COURT: Okay. I just want to ask
you a few questions. We did receive the note
from [Juror 8]. I’ll read it to you. “Jury
cannot come to a decision. We have a jury”
– I am assuming that means juror – “that says
no matter what, she will not change her
mind.” Did you hear that statement made?
JUROR NO. 10: Yes, I did.
THE COURT: Okay.
JUROR NO. 10: I did.
THE COURT: And it was early on in the
deliberations?
JUROR NO. 10: As soon as we sat down.
THE COURT: Okay. Any – any
participation by this juror in the
deliberations?
JUROR NO. 10: She doesn’t want to
listen or –
THE COURT: And has she repeated that
phrase more than once?
JUROR NO. 10: Yes.

UNITED STATES V. LITWIN 19

. . .
THE COURT: ... Is the refusal to consult
with the other jurors, to listen to the views of
the fellow jurors, and to discuss fully? What
is your opinion with respect to the conduct of
this juror as this instruction that the Court
read previously?
JUROR NO. 10: She just doesn’t want to
hear anybody else’s opinions or statements or
review anything.
THE COURT: All right. Okay. Thank
you.
JUROR NO. 10: Okay.
After this exchange, defense counsel acknowledged that
Juror 5 “does have a duty to deliberate,” but argued that “the
fact that she’s not changing her mind, which is what these
jurors seem to be saying, is not grounds to strike her.” To
this the court responded: “I realize that. But we are beyond
that, because she’s refusing to listen to the views of her
fellow jurors, she’s refusing to consider the evidence, she is
refusing to discuss it fully, and she has had this approach
since the very first time that the jury started to discuss the
case.”
At this time, the court then took the opportunity to “make
a further record on this particular individual.” The court then
put the following statement on the record:
This individual, my recollection is that
she’s a paralegal working for a firm here in

20 UNITED STATES V. LITWIN

Las Vegas. During the – during the first day
of deliberations – of juror selection, after she
had been selected, she checked with her firm,
the firm that she is working for as a paralegal.
They informed her that she would not be
paid for anything after the second week. She
made very strenuous attempts to get out of
jury service at that time. My belief, based on
that and what I have heard now, is that she is
sending a message to this Court about the
inconvenience that she has suffered, the harm
to her employment, and having to work extra
hours to make up for her time away on jury
service is a strong motive for what I am
seeing now.
So, she did have an axe to grind. She does
have an axe to grind. She made that very
clear to myself and Miss Saavedra.
The court then addressed the courtroom administrator,
Denise Saavedra:
[THE COURT]: And Miss Saavedra, do
you agree with that?
COURTROOM ADMINISTRATOR:
Yes, Your Honor.
THE COURT: Is there anything that you
wish to add? Did you communicate those
things to me?
COURTROOM ADMINISTRATOR:
Yes. And one thing that she had mentioned

UNITED STATES V. LITWIN 21

that struck me. She was going in
immediately after work, working six to seven
hours after here, after jury trial.
The court then decided to call Juror 5 in for questioning.
Before this occurred, defense counsel expressed concern that
Juror 5 may simply have a certain view of the evidence and
the court should remind her of the instructions to deliberate
and see if she is willing to abide by them. The court
disagreed: “[M]y approach is going to be to ask her if she
actually said these words and how many times she said them.
And if she said that, then I don’t need to go into these other
things.”
The court brought in Juror 5. The following colloquy
ensued, which we reproduce in full:
THE COURT: I have a few questions to
ask you. And I don’t want you to tell me how
the jury stands on the issue of the innocence
or guilt of any of the defendants on any of the
charges, and I don’t want you to discuss with
me the details of any deliberations in court.
JUROR NO. 5: I understand.
THE COURT: All right. When I
instructed you just before you went in to
deliberate, I read an instruction to you.
“When you retire, you should elect one
member of the jury as your foreperson. That
person will preside over the deliberations and
speak for you here in court.” Do you
remember that?

22 UNITED STATES V. LITWIN

JUROR NO. 5: Yes, Your Honor.
THE COURT: “You will then discuss the
case with your fellow jurors to reach
agreement if you can do so.”
JUROR NO. 5: Correct.
THE COURT: All right. Now, further on
in the instructions, it states that you are to
consider the weight and effect of the
evidence. Do you remember that?
JUROR NO. 5: I do.
THE COURT: All right. “Discuss with
your fellow jurors – discuss it fully with your
fellow jurors,” that is all of the evidence, “and
listen to the views of your fellow jurors.”
JUROR NO. 5: I do and I did.
THE COURT: All right. According to
two of your fellow jurors – and I can call
more in, if necessary – you made a statement,
as soon as the jury sat down, after being given
the directive to commence deliberations, that
no matter what, you will not change your
mind. Did you make that statement?
JUROR NO. 5: I did. And if I may have
the –

UNITED STATES V. LITWIN 23

THE COURT: Hold on a minute. How
many times did you make that statement in
the course of the deliberation?
JUROR NO. 5: It’s over like five hours
now, Your Honor.
THE COURT: It was – it was about three
when we first started this. About three hours.
How many times?
JUROR NO. 5: I probably would have
said it three times.
THE COURT: Three times?
JUROR NO. 5: Two to three times.
THE COURT: So, no matter what, you
would not change your mind?
JUROR NO. 5: No, Your Honor.
THE COURT: All right. When – when
you were first selected as a juror, you talked
to Miss Saavedra [the courtroom
administrator] and informed her – and I
believe that was probably in writing – that
you would not be paid for anything after two
weeks of jury service.
JUROR NO. 5: At that time, yes, Your
Honor.

24 UNITED STATES V. LITWIN

THE COURT: All right. And you asked
to be excused as a juror.
JUROR NO. 5: Correct.
THE COURT: All right. Now, when you
discussed that with Miss Saavedra, you also
informed her that you would have to be
working after jury service into the evening
six to eight hours to make up for your time
off; is that right?
JUROR NO. 5: Correct.
THE COURT: All right. You heard the
instructions of the Court to deliberate and
consider the evidence. According to the other
jurors, you have not done that from the outset.
You announced from the outset that you
would not change your mind on the issues
period. Do you agree that that happened?
JUROR NO. 5: It did happen.
THE COURT: All right. Do you wish to
be discharged from the jury?
JUROR NO. 5: If that is the pleasure of
the Court.
THE COURT: No, I’m asking you. I am
asking you. I can send it back for
deliberations if you are willing to change
what you have been doing and consider all
the evidence, read the instructions of the law,

UNITED STATES V. LITWIN 25

listen to the views of your fellow jurors, and
try to reach a verdict. If you feel that that
cannot be done, then I’m going to discharge
you.
JUROR NO. 5: Can I ask you my
understanding of what you just stated, Your
Honor? If my understanding of what you
stated is correct?
THE COURT: You may.
JUROR NO. 5: My understanding from
your last statement is that if I am willing to
go back there, review the evidence, discuss
the evidence, listen to the views of the other
jurors, and come up with a verdict, then you
can send me back. Or, otherwise, you can
dismiss my service right here, right now. Is
that correct, Your Honor?
THE COURT: That’s not exactly correct.
JUROR NO. 5: Okay. And you are
asking me which –
THE COURT: Deliberate toward a
verdict is what I asked you to do.
JUROR NO. 5: I am willing to do that.
In fact, I have done that.
THE COURT: You have not. And using
the words “I will not change my mind no

26 UNITED STATES V. LITWIN

matter what,” three times, you have not been
doing that.
JUROR NO. 5: If that statement makes
that conclusion, then I apologize. But that is
not the context. I mean, I – I would not want
to debate with the Honorable Judge. I just
wanted to put my – my – those three
statements in the proper context, because
that’s not how we started.
THE COURT: According to jurors – and
I can ask other jurors.
JUROR NO. 5: You don’t have to, Judge.
THE COURT: It was right from the get-
go. Right from when you first sat down, you
made that statement, and you acknowledged
to me, when I questioned you, if that was true,
and you said “Yes.”
JUROR NO. 5: I did acknowledge that
those statements were made by me.
Defense counsel at this point requested a sidebar.
Defense counsel argued that Juror 5 was implying that she
had been deliberating and was simply unconvinced by the
other jurors, and “wanted to put it in context and has not been
able to provide the Court with that guidance.” Defense
counsel also argued Juror 5 should be allowed to return to
the jury because she indicated “she’d be willing to agree to
follow your admonition” and fulfill her duty to deliberate.

UNITED STATES V. LITWIN 27

The district court disagreed: “I think it’s a waste of time.
That’s my opinion based on what I have seen. Because when
you announce from the get-go you are not going to consider
any of the evidence or the views of your fellow jurors, to me
that’s – that’s evidence of bias, and she should be
discharged.” Defense counsel asked for Juror 5 to be
allowed to explain the “context” she referenced, but the court
declined: “No, because then we get into the juror
deliberations, and I’m sure she can point to something,
somewhere, that will justify it. She’s a paralegal. She knows
what she’s doing.”
Over defense counsel’s objection, the court then
informed Juror 5 she had been discharged. The court then
put the following oral findings on the record:
The Court makes the following findings.
This – the juror did not genuinely disagree
with the – on the question of the decision of
the jury, of the other jurors. She ignored the
instruction to consider all the evidence,
discuss it fully with the other jurors, listen to
the views of fellow jurors.
She admitted that at least three times she
had made the statement that she would not
change her mind on the issue no matter what,
and one of those statements was made at the
outset. She is a paralegal with many, many
years of experience. She would obviously –
if given the opportunity to explain, she would
probably hang her hat on some point. She’s
savvy enough to do that.
But her announcement from the get-go
shows a bias that cannot be overcome by

28 UNITED STATES V. LITWIN

sending her back with a simple agreement
that she will listen when she didn’t before.
C
The court dismissed the jury for the day, with
deliberations resuming the next morning after an alternate
juror was seated. The jury reached a verdict that afternoon.
The jury hung on the counts against Smith, the pharmacy
manager. See ante at 6 n.1. Wetselaar was convicted on all
charges. Litwin was convicted of conspiracy and seven
counts of unlawful distribution. But the jury acquitted
Litwin on the three counts of making false statements to
authorities and one count of distribution. The district court
sentenced Wetselaar to 120 months imprisonment, and
Litwin to 240 months. The district court also ordered
forfeiture as to both defendants.
Wetselaar and Litwin filed a motion for a new trial based
on, inter alia, the court’s dismissal of Juror 5. The district
court denied the motion. It explained that Juror 5 had been
dismissed for good cause for two reasons: “(1) the juror
refused to deliberate and; (2) the Court was concerned that
the juror harbored at least some level of malice toward the
judicial process and might not have been completely
forthcoming with the Court due to the Court’s refusal to
dismiss the juror during jury selection.” Noting that it had
made efforts to avoid inquiring into jurors’ views on the
merits of the case, the court “confined its dismissal of the
juror to her unwillingness to deliberate and her potential
malice toward the judicial process.”
D
Wetselaar and Litwin appealed. Although the
defendants raised various assignments of error, prior to

UNITED STATES V. LITWIN 29

argument we issued an order directing the parties to focus
their oral presentations on the dismissal of Juror 5. Most of
the oral argument before us centered on that issue. After we
heard argument, on March 24, 2020, we requested
supplemental briefing from the parties on whether, assuming
the district court erred in dismissing Juror 5, the error was
structural error or subject to harmless error review.
On March 30, 2020, the district court sua sponte entered
a minute order supplementing the record. That order reads
in full as follows:
This court received a Notice of Docket
Activity filed March 24, 2020, wherein the
Circuit Court ordered supplemental briefing
from the parties on issues related to the
dismissal of Juror No. 5. In reviewing
chamber documents in this case, the court
located emails from Juror No. 6, who later
became Juror No. 5. These were found
among notes and questions to the court from
other jurors in this case. Such
communications are considered
administrative and not routinely made a part
of the official record. The subject emails are
attached, and the following will provide
context to the dismissal of this juror.
The subject emails from Juror No. 5 state that
following her selection she learned that her
employer would not pay her for jury service
of more than 2 weeks. Her employer was a
law firm that has been involved in hundreds
of cases in federal court. It was suggested
that in light of the short trial days, she work

30 UNITED STATES V. LITWIN

with her employer to obtain a resolution.
Before trial, the juror confirmed that she was
available to serve as a juror for the length of
time specified in her jury summons. She did
not respond affirmatively to voir dire
questioning concerning potential hardships
of jury service, nor did she formally pursue
additional relief thereafter. At the time of the
request, the jury had been seated and the
court was concerned about losing jurors due
to an ongoing flu epidemic and the
unpredictable events often associated with a
lengthy trial. (The epidemic later actually
became a problem for participants in the
trial). What is also not apparent from the
record is that the refusal of the court to
dismiss her resulted in bitter and ongoing
complaints from Juror No. 5 throughout the
entire trial. Because the court does not
interface directly with jurors except on the
record, this information was being relayed to
the court by the courtroom administrator.
The overwhelming weight of the evidence
supporting a finding of guilt, along with her
express refusal to participate in deliberations,
resulted in the ultimate finding that the juror
was not acting in good faith and needed to be
dismissed.

UNITED STATES V. LITWIN 31

Court personnel are prepared to provide
further information in sworn declarations as
deemed necessary.
3

II
We now turn to our analysis of the district court’s
dismissal of Juror 5, beginning with the legal principles that
govern our review. Under Federal Rule of Criminal
Procedure Rule 23(b)(3), “[a]fter the jury has retired to
deliberate” the court may dismiss a juror for “good cause.”
Under that standard, it is well established that “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. Symington,
195 F.3d 1080, 1085 (9th Cir. 1999) (quoting United States
v. Brown, 823 F.2d 591, 596 (D.C. Cir. 1987)).
The basis for this understandable limitation is the Sixth
Amendment’s right to a unanimous jury verdict. “In all
criminal prosecutions,” the Sixth Amendment guarantees the
right to trial “by an impartial jury.” U.S. Const. amend. VI.
As the Supreme Court explained just this Term, “[w]herever
we might look to determine what the term ‘trial by an
impartial jury trial’ meant at the time of the Sixth
Amendment’s adoption—whether it’s the common law,
state practices in the founding era, or opinions and treatises
written soon afterward—the answer is unmistakable. A jury
must reach a unanimous verdict in order to convict.” Ramos

3
On April 24, 2020, Dr. Wetselaar passed away. We thus dismissed
Dr. Wetselaar’s appeals and remanded to the district court with
instructions to vacate the judgment and dismiss the indictment as to
Wetselaar. See, e.g., United States v. Oberlin, 718 F.2d 894, 895 (9th
Cir. 1983). Only Litwin’s appeals remain before us.

32 UNITED STATES V. LITWIN

v. Louisiana, 140 S. Ct. 1390, 1395 (2020); see also Fed. R.
Crim. P. 31(a) (“The verdict must be unanimous.”).
Because a jury must be in universal agreement to
convict, it does not take much to see that removing a juror
merely because she disagrees with her fellow jurors on the
proper outcome of the case would provide an obvious end-
run around the unanimous jury verdict guarantee. If a juror
could be removed on this basis, “then the right to a
unanimous verdict would be illusory.” Brown, 823 F.2d
at 596. “A discharge of this kind would enable the
government to obtain a conviction even though a member of
the jury that began deliberations thought that the government
had failed to prove its case. Such a result is unacceptable
under the Constitution.” Id.; see also United States v.
Christensen, 828 F.3d 763, 807 (9th Cir. 2015); United
States v. Thomas, 116 F.3d 606, 621 (2d Cir. 1997). We
have thus explained that when faced with a juror who refuses
to agree with other jurors about the strength of the
government’s case, the court has two options: “declare a
mistrial or send the juror back to deliberations with
instructions that the jury continue to attempt to reach
agreement.” Symington, 195 F.3d at 1085–86 (quoting
Brown, 823 F.2d at 596).
There are, of course, many situations where this core
Sixth Amendment right is not implicated because the juror
is removable for reasons that have nothing to do with her
views on the case. Sickness or family emergencies are
obvious examples. United States v. Vartanian, 476 F.3d
1095, 1098 (9th Cir. 2007). In addition, “[c]ourts have also
found ‘just cause’ to dismiss jurors who, although available
and physically capable of serving, are nonetheless found to
be unable to perform their duties properly.” Thomas,
116 F.3d at 613.

UNITED STATES V. LITWIN 33

Blatant juror misconduct is one example of a situation
that plainly justifies dismissing a juror. See, e.g., Smith v.
City & Cty. of Honolulu, 887 F.3d 944, 954 (9th Cir. 2018)
(juror made violent threats to another juror); United States v.
McGill, 815 F.3d 846, 868–69 (D.C. Cir. 2016) (per curiam)
(juror properly discharged after “remov[ing] case-related
notes from the jury room in violation of the court’s
instructions”); Vartanian, 476 F.3d at 1098–99 (juror
contacted defendant and his family and lied about it to
court).
An inability or unwillingness to follow the law is another
prototypical instance in which a juror may be permissibly
removed without offending the Sixth Amendment. See, e.g.,
United States v. Decoud, 456 F.3d 996, 1003–05, 1017 (9th
Cir. 2006) (juror requested dismissal because her religious
beliefs prevented her from applying the law). As we have
explained, “[a] juror’s intentional disregard of the law, often
in the form of juror nullification, can constitute good cause
for dismissal of the juror.” Christensen, 828 F.3d at 806.
More difficult situations arise when the basis for a juror’s
dismissal treads closer to the merits of the case. And the
most difficult of these scenarios may well be a juror’s
alleged failure to deliberate. If a juror has reached a
decision, at what point is potential unwillingness to alter that
position a failure to deliberate as opposed to a reflection of
the juror’s sincerely held view of the evidence presented? Is
a perceived disinterest in entertaining the views of other
jurors a refusal to follow the jury instructions or merely an
expression of disagreement with the opinions of fellow
jurors? Gauging the extent of an impasse becomes only
more difficult in the tinderbox of the jury room, where
frayed nerves and passionate views can cause persons of
good faith to doubt the sincerity of those with whom they

34 UNITED STATES V. LITWIN

disagree. As we have recognized, disagreements on the
merits can “certainly manifest themselves in concerns about
a juror’s reasonableness or general capacity as a juror.”
Symington, 195 F.3d at 1088; see also United States v.
McIntosh, 380 F.3d 548, 556 (1st Cir. 2004) (“[W]hether a
juror is refusing to deliberate or has simply reached a
conclusion contrary to the other jurors is a question of
exquisite delicacy. The line between the two can be
vanishingly thin.”).
Our cases recognize that district courts operate on the
front lines in this difficult space between trial management
and protection of a defendant’s Sixth Amendment rights.
This important task is complicated by the imperative that
courts “not delve deeply into a juror’s motivations” and
thereby “intrude on the secrecy of the jury’s deliberations.”
Symington, 195 F.3d at 1086 (quoting Brown, 823 F.2d
at 596). But while district courts cannot pry into the jury’s
discussions—and we acknowledge that the district court in
this case made a careful effort to avoid doing so—district
courts, unlike appellate courts, are able to observe jurors in
person. We therefore “‘generally defer to the district court’s
good cause determinations’ because ‘the district court is in
the best position to evaluate the jury’s ability to deliberate.’”
Christensen, 828 F.3d at 808 (quoting Vartanian, 476 F.3d
at 1098).
Our cases set forth legal standards to govern district
courts in their decisions whether to dismiss a juror for good
cause. Given the need to avoid “delving into the juror’s
views on the merits of the case,” Symington, 195 F.3d
at 1087, we have held 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.” Christensen,

UNITED STATES V. LITWIN 35

828 F.3d at 807 (quoting Symington, 195 F.3d at 1087). This
means that “the available evidence must be ‘sufficient to
leave one firmly convinced that the impetus for a juror’s
dismissal is unrelated to his or her position on the merits.’”
Id. (quoting Symington, 195 F.3d at 1087 & n.5) (alterations
omitted).
In deference to the district court’s superior vantage point,
we review the district court’s dismissal of a juror during
deliberations for abuse of discretion. Id. at 806. Factual
findings are reviewed for clear error. Id. Under our cases,
“[t]he decision to excuse a juror is committed to the district
court’s discretion and we must affirm unless we are left with
the definite and firm conviction that the court committed a
clear error of judgment in reaching its conclusion after
weighing the relevant factors.” Id. (quoting United States v.
Beard, 161 F.3d 1190, 1194 (9th Cir. 1998)).
We applied these legal principles in one of the leading
cases in this area, United States v. Symington, 195 F.3d 1080
(1999). In Symington, several days into deliberations
following a long and complex trial, the court received a jury
note complaining that “[o]ne juror has stated their final
opinion prior to review of all counts.” Id. at 1083. The court
reinstructed the jury on its duty to deliberate. Id. Four days
later, the jury sent another note to the court explaining that it
had been trying to continue, but the same juror (Cotey)
refused to discuss her views. The other jurors believed for
various reasons that Cotey lacked the “ability to comprehend
and focus” on the discussion. Id.
The court questioned each member of the jury. Some of
this testimony indicated that Cotey “appeared confused and
unfocused during deliberations.” Id. But other testimony
indicated that Cotey “seems to have her mind set [and] says
she doesn’t have to explain herself to anybody” and “just

36 UNITED STATES V. LITWIN

kept getting stuck on two elements.” Id. at 1084. Another
juror complained that “[w]e are blocked and blocked and
blocked.” Id. Cotey testified that she was willing to
continue deliberating and discuss her views but became
intimidated by demands to justify her positions. Id. The
district court dismissed Cotey, finding good cause because
Cotey was “either unwilling or unable to participate in the
deliberative process.” Id. An alternate juror was seated, and
the jury returned its verdict two weeks later. Id.
We reversed. We noted it was “undisputed” that “if the
other jurors did seek to remove Cotey because they
disagreed with her views on the merits,” then the juror’s
dismissal “was improper.” Id. at 1085. We held that
“[w]hile 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 opposite to
theirs on the merits of the case.” Id. at 1088. We recognized
that “because the district court properly avoided
compromising the secrecy of the jury’s deliberations, the
evidence available to the district court was necessarily
limited.” Id. at 1088 n.7. But we concluded that the
conviction could not stand because “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.” Id.
III
We now turn to whether the district court in this case
reversibly erred in dismissing Juror 5. Given the legal
standards we have set forth above, district courts’ decisions
to excuse jurors have been upheld in various circumstances.
See, e.g., Christensen, 828 F.3d at 813–14; Decoud,
456 F.3d at 1017; Beard, 161 F.3d at 1194. But as

UNITED STATES V. LITWIN 37

Symington demonstrates, while district courts of necessity
have leeway in how they approach juror dismissal issues,
because defendants have a Sixth Amendment right to a
unanimous jury verdict, “[t]he district court’s discretion in
this area is not unbounded.” Symington, 195 F.3d at 1085.
Courts, including ours, have thus reversed convictions where
the record indicated an unacceptable risk that a juror was
dismissed for reasons stemming from her views on the case.
See id. at 1088; Thomas, 116 F.3d at 625; Brown, 832 F.2d
at 599–600.
The district court here provided two bases for dismissing
Juror 5: (1) her “potential malice toward the judicial
process;” and (2) “her unwillingness to deliberate.”
Notwithstanding the deferential standard of review that we
must apply, neither of the district court’s rationales
supported the dismissal of Juror 5. While no single fact is
determinative, based on the unique combination of
circumstances of this case, we are firmly convinced that the
record “discloses [a] reasonable possibility that the impetus
for [the] juror’s dismissal stems from the juror’s views on
the merits of the case.” Christensen, 828 F.3d at 807
(quoting Symington, 195 F.3d at 1087 n.5) (emphasis
omitted).
A
1
We begin with the district court’s apparent finding that
Juror 5 refused to deliberate because she harbored at least
some “potential malice toward the judicial process.” As we
recounted above, after the district court learned that the
jury’s note concerned Juror 5, and before hearing from Juror
5 herself, the court drew a connection between Juror 5’s
conduct in jury deliberations and her earlier attempt to be

38 UNITED STATES V. LITWIN

excused from jury duty. At that point in the proceedings, the
district court elected to make a “record on this particular
individual.” The court stated that based on Juror 5’s “very
strenuous attempts to get out of jury service at that time,”
“[m]y belief . . . is that she is sending a message to this Court
about the inconvenience that she has suffered,” and that
Juror 5 had “an axe to grind” with the court. In its order
denying defendants’ motion for a new trial, the court
expanded on this point further. It explained that it dismissed
Juror 5 in part because she “harbored at least some level of
malice toward the judicial process” based on the court’s
earlier decision that she would not be excused from jury
service due to her employer’s policies.
It is true that bias is a permissible ground on which to
dismiss a juror. See, e.g., Christensen, 828 F.3d at 808, 812
n.25 (upholding dismissal of juror who stated that
“witness[es] never tell the truth” and “if the federal
government charges someone, they’re innocent”); United
States v. Kemp, 500 F.3d 257, 272–73 (3d Cir. 2007)
(upholding dismissal of juror who stated that “[t]he
government lies,” “[t]hey always lie,” and “Prosecutors and
FBI agents are liars”). Sometimes this bias is manifested in
a refusal to apply the law, also known as jury nullification.
See, e.g., United States v. Oscar, 877 F.3d 1270, 1288 (11th
Cir. 2017) (juror admitted she “was not following the law”
because “she believed that there’s something . . . very wrong
about the system”) (alterations and internal quotation marks
omitted); Thomas, 116 F.3d at 614 (“[The district court]
identified a different form of bias as the primary ground for
dismissing Juror No. 5—one arising not from an external
event or from a relationship between a juror and a party, but
rather, from a more general opposition to the application of
the criminal narcotics laws to the defendants’ conduct.”).

UNITED STATES V. LITWIN 39

In this case, however, no juror reported that Juror 5 made
comments indicative of a bias against the judicial process.
In fact, when the district court asked Juror 8 (the originator
of the note) if Juror 5 had “expressed any views about the
law or bias that would indicate an intent to nullify . . . the
law,” Juror 8 did not identify any such views. Instead, Juror
8 responded that Juror 5 “seems to be confused about one
part” of the jury instructions and was “getting stuck on one
part of the sentence.”
When the district court questioned Juror 5, there was
likewise no suggestion that Juror 5 made comments
reflective of a bias against the court. In response to the
district court’s questions, Juror 5 acknowledged she had
sought relief from jury duty months earlier because of her
employer’s policy to pay only two weeks’ salary during her
jury service. Juror 5 also acknowledged, again in response
to the district court’s questioning, that when she had
previously sought dismissal from jury service shortly after
voir dire, she informed Ms. Saavedra, the courtroom
administrator, that she would need to work six to eight hours
a day “to make up for [her] time off.”
In this colloquy with the court Juror 5 agreed that she had
previously requested dismissal due to her employer’s
policies. Effectively, Juror 5 acknowledged what is likely
true of many jurors serving in protracted trials like this one:
that Juror 5 had other obligations outside of trial, so that jury
service was a significant imposition on her life. We
recognize that the district court had a superior vantage point,
but the court’s findings give us very little to go on. The
transcript does not show a potential malice toward the
judicial process, or one that overcomes Juror 5’s repeated
statements indicating her willingness to continue
deliberating.

40 UNITED STATES V. LITWIN

We can, of course, readily accept that a district court
could dismiss a juror based on circumstances indicating a
likely bias, regardless of whether a juror makes a comment
reflective of bias. See, e.g., United States v. Egbuniwe,
969 F.2d 757, 761 (9th Cir. 1992) (affirming district court’s
dismissal of juror where the district court “determined that
the juror could no longer be fair and impartial after he was
informed during jury deliberations of alleged police
misconduct involving his girlfriend”); Thomas, 116 F.3d
at 621 (explaining that a bias can be discerned when “an
event or relationship itself becomes the subject of
investigation”). A juror’s mere say-so that she is not biased
would not preclude her dismissal on this ground if the facts
and circumstances otherwise pointed to a bias that would
impede a juror’s faithful service. Egbuniwe, 969 F.2d at 762.
But even reviewing for abuse of discretion, we cannot
conclude on the available record that Juror 5 harbored “at
least some level of malice” toward the judicial process and
was not “completely forthcoming” due to the district court’s
months-earlier determination that Juror 5 would not be
excused from jury service. The district court linked Juror 5’s
conduct during jury deliberations to her request to be
dismissed as a juror, but we can see nothing in the record of
the two-month trial that suggests an ongoing bias against the
court. The district court’s theory that Juror 5 maintained a
malice that she then acted upon some months later once the
jury retired to deliberate therefore lacks support in the
record.
2
We briefly consider the sua sponte minute order that the
district court issued on March 30, 2020. The district court
issued the minute order in response to an order we issued
after oral argument requesting that counsel file supplemental

UNITED STATES V. LITWIN 41

briefs addressing whether the erroneous dismissal of a juror
constitutes structural error or error that should be reviewed
for harmlessness.
The district court’s minute order attached emails relating
to Juror 5’s request to be released from jury service; the
substance of these emails was already in the record. The
order also stated that the court’s earlier refusal to dismiss
Juror 5 resulted in Juror 5 making “bitter and ongoing
complaints . . . throughout the entire trial,” but that this was
“not apparent from the record.” To that end, the district
court’s minute order suggested that court personnel could
provide further information in sworn declarations for our
consideration. In context, the order seems to suggest
declarations providing additional descriptions of Juror 5’s
demeanor or complaints made throughout the course of the
trial, which would expand upon the court’s reasons for
deciding that Juror 5 was not acting in good faith and needed
to be dismissed.
In very limited situations, Federal Rule of Appellate
Procedure 10(e) allows district courts to correct or modify
the record on appeal. This is not one of those circumstances.
See United States v. Garcia, 997 F.2d 1273, 1278 (9th Cir.
1993) (explaining that Federal Rule of Appellate Procedure
10(e) cannot be used “to supplement the record with material
not introduced or with findings not made”). The proffered
new declarations would be created more than three years
after the fact, and with no opportunity for the defendant to
meaningfully respond. Any consideration of such
declarations would pose serious due process concerns. We
therefore decline to consider the additional description of the
trial court proceedings contained in the minute order.

42 UNITED STATES V. LITWIN

B
We turn next to the district court’s second stated ground
for dismissing Juror 5: that Juror 5 “did not genuinely
disagree” with other jurors and “refused to deliberate” with
them. At least in its written order denying defendants’
request for a new trial, the district court treated Juror 5’s
alleged failure to deliberate as a ground for her dismissal that
was independent of Juror 5’s asserted “malice” toward the
judicial process—a ground we have held is not supported in
the record.
It is not clear these two grounds can be so easily
separated. After learning from other jurors about the
difficulties in the jury room and before it heard from Juror 5,
the district court “ma[d]e a further record on this particular
individual.” The court at this point connected Juror 5’s prior
effort to be excused from jury service to her alleged failure
to deliberate: “My belief, based on that and what I have
heard now, is that she is sending a message to this Court
about the inconvenience that she has suffered, the harm to
her employment, and having to work extra hours to make up
for her time away on jury service is a strong motive for what
I am seeing now.” Juror 5 was not deliberating, in other
words, because she had “an axe to grind” with the court. In
its oral ruling dismissing Juror 5, the court similarly
explained that Juror 5’s “announcement from the get-go”
that she had made up her mind “shows a bias that cannot be
overcome.”
Even so, treating the “failure to deliberate” finding as a
separate ground for removal, we confront the question of
whether Juror 5 refused to deliberate or whether her
dismissal stems from her views on the merits of the case.
Here, the record clearly discloses a “reasonable possibility
that the impetus for [Juror 5’s] dismissal stems from [her]

UNITED STATES V. LITWIN 43

views on the merits of the case.” Christensen, 828 F.3d
at 807 (quoting Symington, 195 F.3d at 1087) (emphasis
omitted).
1
We begin by considering perhaps the most powerful
evidence supporting Juror 5’s dismissal: the testimony of
Jurors 8 and 10 that Juror 5 would not engage in the
deliberative process. In response to the court’s questions,
Juror 8 confirmed that Juror 5 was “refusing to consider the
evidence,” “refusing to consider the views of her fellow
jurors,” and “refusing to participate in deliberations.” Juror
10 similarly stated that Juror 5 “doesn’t want to listen” and
“doesn’t want to hear anybody else’s opinions or statements
or review anything.”
As we look further through the record, however, we see
contrary evidence indicating a reasonable possibility that the
jury’s impasse may have stemmed from competing
interpretations of a jury instruction or from Juror 5’s views
of the merits of the case. See Symington, 195 F.3d at 1087–
88. We begin with the jury’s note itself, which stated that
the “Jury cannot come to a decision. We have a jur[or] that
says no matter what, she will not change her mind.” The
district court in its order denying defendants’ motion for a
new trial explained that this “note raised legitimate concerns
that the juror was refusing to deliberate and was unwilling or
unable to participate in rational discussions regarding the
evidence and the legal standard.”
We agree the jury’s note raised legitimate concerns that
required further inquiry. But the note appeared to convey
that the jury had a disagreement about the case itself,
because the note said the jury “cannot come to a decision”
and “no matter what” a juror “will not change her mind.”

44 UNITED STATES V. LITWIN

(Emphasis added). As we have recognized, “[t]he dynamics
of the jury process are such that often only one or two
members express doubt as to [a] view held by a majority at
the outset of deliberations.” United States v. Lopez, 581 F.2d
1338, 1341 (9th Cir. 1978) (Kennedy, J.). In this case, the
jury had deliberated for three hours before sending its note
about being unable to “come to a decision,” and by that point
the jury had already sent two other notes to the court
indicating that jurors were seeking guidance on the
applicable legal standards.
In addition to the text of the jury’s notes, when the
district court asked Juror 8 if Juror 5 had “expressed any
views about the law or bias that would indicate an intent to
nullify . . . the law,” Juror 8 instead responded that Juror 5
“seems to be confused about one part of it.” According to
Juror 8, although other jurors had “attempted to explain it
and read it to her several times,” Juror 5 was “getting stuck
on one part of the sentence” and “not reading it as a whole.”
Juror 8 further confirmed that Juror 5’s issue applied to all
charges, and that Juror 8 had “asked her that, too.”
The district court did not follow up with Jurors 5 or 8 to
find out what jury instructions were “confus[ing]” Juror 5.
The court also did not take up defense counsel’s request to
ask Juror 5 about the “context” she repeatedly referred to
when she apologized to the court and tried to explain her
statement that she would not change her mind “no matter
what.”
We do not fault the district court for its efforts to steer
clear of the jury’s view of the evidence. The district court
was required to avoid prying into the substance of the jury’s
discussions, and it had to take care to avoid a line of
questioning that could reveal the contents of the jury’s secret
deliberations. See Symington, 195 F.3d at 1086; Brown,

UNITED STATES V. LITWIN 45

823 F.2d at 596. Whether or not there was a way for the
district court to thread this needle here, the district court was
not expected to undertake that potentially difficult task.
At the same time, however, Juror 8’s description about
Juror 5’s contrary interpretation of a jury instruction cannot
be ignored. The district court did not address this issue in
explaining its decision to dismiss Juror 5. But Juror 8’s
statement on this score is important. Jurors’ discussions
about the language of jury instructions occur in the context
of considering the case and measuring the evidence against
the instructions. E.g., Boyde v. California, 494 U.S. 370,
381 (1990) (noting that “[d]ifferences among [jurors] in
interpretation of instructions may be thrashed out in the
deliberative process, with commonsense understanding of
the instructions in the light of all that has taken place at the
trial”). Discussions of this nature, at bottom, center on
whether the government has met its burden of proof. See
Symington, 195 F.3d at 1084 (complaints that juror “‘kept
getting stuck on two elements’” indicated that other jurors’
frustrations “may have derived more from their
disagreement with her on the merits of the case, or at least
from their dissatisfaction with her defense of her views”).
Nor was there a suggestion that Juror 5 was engaged in
nullification of the law.
Juror 8’s description of Juror 5’s alleged confusion about
a jury instruction also highlights that Juror 5 was
deliberating to some extent. For Juror 8 to be able to
describe Juror 5 “getting stuck on one part of a sentence” and
being “confused about one part” of the instructions, there
had to have been some amount of discussion with Juror 5.
And although Juror 10 indicated that Juror 5 stated she
would not change her mind as soon as the jury began
deliberating, Juror 8 somewhat differently reported that

46 UNITED STATES V. LITWIN

Juror 5 stated her position “[a]s the evidence was rolled in,
after we had already started debating.” Indeed, Juror 8
explained that other jurors had “tried multiple angles” with
Juror 5, again indicating some amount of discussion with
her.
The district court in questioning Juror 5, and in its later
oral ruling dismissing her, seemed to draw dispositive
significance from the fact that the jury’s note said Juror 5
would not change her mind “no matter what,” as well as
Juror 5’s admission that she had made this statement two or
three times early in deliberations. To the extent the district
court treated Juror 5’s statements as reflecting “potential
malice toward the judicial process,” this lacks support for the
reasons stated above. Moreover, given the text of the jury’s
note and Juror 8’s testimony about discussions with Juror 5
concerning a jury instruction, the statement that a juror will
not change her mind “no matter what” is one that, on this
record, reflects ambiguity. Compare McIntosh, 380 F.3d at
551, 556 (affirming a district court’s decision not to remove
a juror after juror stated, inter alia, “that nobody is going to
change his mind”), with Symington, 195 F.3d at 1083–84
(reversing dismissal of juror where other jurors had reported
the dismissed juror conveying that she had “her mind made
up” and had “her mind set”), and Thomas, 116 F.3d at 611
(reversing dismissal of juror who stated that “‘he would not
change his mind’”). Indeed, Juror 8 reported that Juror 5
said it was “her right” not to change her mind.
We recognize that Jurors 8 and 10 both stated that, in
their view, Juror 5 was not considering the evidence and not
considering the views of her fellow jurors. But based on the
record as a whole, there remains “a reasonable possibility
that [Juror 5’s] views on the merits of the case provided the
impetus for” the jury’s note and Juror 5’s ultimate removal.

UNITED STATES V. LITWIN 47

Symington, 195 F.3d at 1088; see also McGill, 815 F.3d
at 869 (explaining that a perceived refusal to deliberate can
pose “inherent potential for confusion with a juror’s
evidence-based inclination to acquit”); Thomas, 116 F.3d at
611 (reversing district court’s dismissal of a juror where
juror had stated, inter alia, “‘that he would not change his
mind’” and where juror note had cited the dismissed juror’s
“predisposed disposition”).
Juror 5 asked for an opportunity to give “context” for her
statement that she was not going to change her mind no
matter what, and apologized if that statement implied an
unwillingness to deliberate. The district court did not allow
Juror 5 to explain herself and was clearly trying to avoid
delving into the jury’s deliberations. But in its oral ruling
dismissing Juror 5, the district court referenced Juror 5’s
legal experience and stated: “She is a paralegal with many,
many years of experience. She would obviously – if given
the opportunity to explain, she would probably hang her hat
on some point. She’s savvy enough to do that.” Earlier in
the proceedings, the district court similarly stated: “I’m sure
she can point to something, somewhere, that will justify it.
She’s a paralegal. She knows what she’s doing.”
These were not sufficient grounds for declining to give
the jury a further opportunity to continue deliberating,
including with re-instructions as necessary. Where the jury
had deliberated only about three hours, where Juror 5 had
stated she was willing to continue deliberating, and given the
record as a whole, which includes Juror 5’s alleged
confusion over a jury instruction, the district court was
premature in concluding that sending the jury back to
deliberate would be “a waste of time.”

48 UNITED STATES V. LITWIN

2
Relying on our decision in Christensen, the government
points to the comparatively limited amount of jury
deliberation that took place here. Specifically, the
government points out that in Christensen, we distinguished
Symington in part based on the length of time the jury had
been deliberating there before problems arose. See
Christensen, 828 F.3d at 811. In Christensen, we thus
explained that “[t]he longer period of time in Symington is
consistent with a juror attempting to engage in deliberations
on the merits but unable to convince his or her cohort.” Id.
Conversely, we noted, “one hour is unlikely to have been
enough time for the jurors to have ascertained such a
difference in their views on the evidence.” Id. The
government thus urges that because jurors here only
deliberated for three hours before sending a note
complaining about Juror 5, the note did not stem from a
disagreement about the case itself.
Christensen, however, was a very different case. It
involved a juror who made numerous “anti-government”
statements, called the government’s case “a joke,” and then
lied to the court about whether he had made these statements
to other jurors. Id. at 809–12. There are no analogous
circumstances like that here. Moreover, while Christensen
observed that a lengthier deliberation period can be
indicative of a disagreement among jurors on the merits of
the case, id. at 811, Christensen did not create a bright-line
rule allowing jurors to be dismissed so long as the jury had
only been deliberating a short time. While a longer period
of discussion may be “consistent with” a disagreement on
the weight of the evidence, id., a shorter period of discussion
is not necessarily inconsistent with that either, particularly

UNITED STATES V. LITWIN 49

given the intensely fact-dependent nature of juror dismissal
cases.
Our holding in this case accords with the three leading
cases involving the most comparable facts: our decision in
Symington, and the decisions in United States v. Thomas,
116 F.3d 606 (2d Cir. 1997), and United States v. Brown,
823 F.2d 591 (D.C. Cir. 1987). In these cases, courts of
appeal each held, based on the distinct records before them,
that district courts reversibly erred in dismissing a juror after
deliberations had begun. See Symington, 195 F.3d at 1088;
Thomas, 116 F.3d at 625; Brown, 832 F.2d at 599–600.
In addition, in Symington, Thomas, and Brown, there
were strong counter-narratives indicating that the impetus
for the jurors’ dismissals stemmed from reasons other than
the jurors’ views on the merits. In Symington, there was a
substantial record supporting the juror’s incoherence and
inability to understand the proceedings. 195 F.3d at 1083;
see also id. at 1093–97 (Fitzgerald, J., dissenting). In
Thomas and Brown, there was substantial record evidence
suggesting that the juror was unwilling to follow the law, i.e.,
jury nullification. See Thomas, 116 F.3d at 611, 614–17;
Brown, 823 F.3d at 594–95. And yet the courts in all three
cases held that the dismissals of the jurors were improper
because of the reasonable possibility that the dismissals
instead stemmed from the jurors’ views on the strength of
the government’s case. See Symington, 195 F.3d at 1088;
Thomas, 116 F.3d at 625; Brown, 832 F.2d at 596–97. In
this case, by contrast, the identified alternative explanation
for Juror 5’s claimed failure to deliberate—Juror 5’s
“malice” toward the court—is lacking.

50 UNITED STATES V. LITWIN

IV
Having determined that the dismissal of Juror 5 during
deliberations was error, we turn to the question of the
appropriate remedy. The defendant argues that the improper
removal of Juror 5 was structural error, requiring automatic
reversal of his convictions and vacatur of his sentence. See,
e.g., United States v. Gonzalez-Lopez, 548 U.S. 140, 148
(2006); Sullivan v. Louisiana, 508 U.S. 275, 281–82 (1993).
The government, by contrast, argues that the court should
evaluate whether the error was harmless.
No party has identified a case in which a court has delved
into the question whether the improper dismissal of a juror
during deliberations is structural error or subject to harmless
error review. In cases where this error was held to have
occurred, the convictions were reversed without discussion.
See Symington, 195 F.3d at 1088; Thomas, 116 F.3d at 606,
625; Brown, 823 F.2d at 597; see also United States v.
Matthews, 709 F. App’x 481, 482 (9th Cir. 2018); United
States v. Tabacca, 924 F.2d 906, 915 (9th Cir. 1991)
(reversing convictions after determining district court
improperly proceeded without a juror who became
unavailable during deliberations).
Assuming the government is correct that Juror 5’s
dismissal is susceptible to harmless error review, we cannot
find the error harmless. See Beard, 161 F.3d at 1195
(declining to decide whether district court’s improper
substitution of alternate jurors was structural error or subject
to harmless error review because even if the latter could
apply, “[i]t has not been shown that the error was harmless”).
Because this is constitutional error, the government
bears the burden of demonstrating the error “was harmless
beyond a reasonable doubt.” Chapman v. California,

UNITED STATES V. LITWIN 51

386 U.S. 18, 24 (1967); see also, e.g., United States v.
Velarde-Gomez, 269 F.3d 1023, 1034–35 (9th Cir. 2001) (en
banc). Under this standard, “[t]he question a reviewing court
must ask is this: absent [the error] is it clear beyond a
reasonable doubt that the jury would have returned a verdict
of guilty?” United States v. Hasting, 461 U.S. 499, 510–11
(1983); see also, e.g., United States v. Bustamante, 687 F.3d
1190, 1195 (9th Cir. 2012).
We do not lightly remand this case, and we are mindful
of the expense and inconvenience that retrial will require.
Nevertheless, on this record we cannot conclude that the
district court’s error was harmless beyond a reasonable
doubt. The government presented compelling evidence that
Litwin engaged in the charged conduct, including testimony
from eyewitnesses and undercover agents. But Litwin also
presented defenses, particularly as to his lack of criminal
intent, and there was at least some evidence to support them.
In fact, the jury ultimately acquitted Litwin of some of the
charges. And as explained above, there is also reason to
believe Juror 5 had views on the merits of the case. Even
though the government’s case-in-chief was strong, Litwin
was entitled to a fair trial consistent with the Sixth
Amendment.
Because the record lacks sufficient support for the
district court’s assessment of Juror 5’s willingness and
ability to deliberate, we vacate the district court’s judgment
and remand for further proceedings. Given the entirety of
the record discussed above, and again assuming that the
issue is amenable to a harmlessness analysis, the government
has not demonstrated beyond a reasonable doubt that the
result would have been the same had Juror 5 not been
dismissed.

52 UNITED STATES V. LITWIN

We vacate defendant’s convictions and remand for a new
trial. We do not reach defendant’s other assignments of
error.
VACATED AND REMANDED.