NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 29 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-10054

Plaintiff-Appellee, D.C. No. 2:15-cr-00125-GEB-1 v.

BENJAMIN MACIAS,

MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California Garland E. Burrell, Jr., District Judge, Presiding

Submitted April 15, 2020** San Francisco, California

Before: BERZON and IKUTA, Circuit Judges, and LEMELLE,*** Senior District Judge.

Benjamin Macias appeals his conviction and sentence for drug and firearms

charges based on a series of cocaine transactions between December 2014 and July

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** This appeal is ordered submitted on the briefs as of April 15, 2020, pursuant to Fed. R. App. P. 34(a)(2). *** The Honorable Ivan L.R. Lemelle, Senior United States District Judge for the Eastern District of Louisiana, sitting by designation. 2015. We review a possible violation of the Sixth Amendment de novo, United

States v. Myers, 930 F.3d 1113, 1118 (9th Cir. 2019), and the admission of

evidence for abuse of discretion and prejudicial error, United States v. Carpenter,

923 F.3d 1172, 1180-81 (9th Cir. 2019). We review for abuse of discretion both

the application of a sentencing enhancement and the dismissal of a juror after

deliberations have commenced. United States v. Gasca-Ruiz, 852 F.3d 1167, 1170

(9th Cir. 2017) (en banc); United States v. Christensen, 828 F.3d 763, 806 (9th Cir.

2015). We deny Macias’s appeal and affirm the district court’s rulings.

1. Macias’s argument that only he had the authority to waive time for

purposes of a constitutionally speedy trial is unavailing. Macias rests his argument

on an analogy to McCoy v. Louisiana, 138 S. Ct. 1500 (2018). Distinguishing

decisions reserved for the client from those which are the lawyer’s province,

McCoy noted that trial management is generally controlled by counsel. Id. at 1508.

As counsel’s trial management authority applies to scheduling matters, including

agreements to delay trial, New York v. Hill, 528 U.S. 110, 115 (2000), Macias’s

analogy to McCoy is inapposite.

This court has evaluated constitutional speedy trial claims under the

framework laid out in Barker v. Wingo, 407 U.S. 514 (1972), even where a

defendant disagreed with his counsel’s trial scheduling decisions, United States v.

Lam, 251 F.3d 852, 854-55 (9th Cir. 2001). As Macias made no argument to this

2 court under the Barker framework, and in fact specifically disclaimed the

applicability of the framework, we do not reach any such analysis.

2. Any error in admitting evidence of drug sales by Macias for which he

was not charged under Rule 404(b) of the Federal Rules of Evidence was harmless.

See Carpenter, 923 F.3d at 1182-83. As Macias acknowledges, the government’s

case against him was overwhelming even excluding this evidence.

3. The court did not abuse its discretion in dismissing Juror #6 after

deliberations began because Juror No. 6 was discharged for good cause and there is

no reasonable possibility that the dismissal was based on the juror’s views of the

merits. See United States v. Symington, 195 F.3d 1080, 1087 (9th Cir. 1999).

The court made two findings that were supported by the record and were

valid grounds for dismissing Juror No. 6.

First, the court held that Juror No. 6 was not credible in claiming he had

safety concerns, because the record showed that Juror No. 6 “was trying to figure

out how to get off this case” even before jury deliberations began, and failed to

communicate his alleged safety concerns to the judge before deliberations despite

receiving instructions about how to do so. A court’s determination that a juror

“was untruthful with the court and untrustworthy” is a valid basis for discharging a

juror, and “[w]e afford special deference to a trial court’s adverse credibility

finding because the determination of credibility is largely one of demeanor.”

3 Christensen, 828 F.3d at 808 (quotation omitted).

Second, the court held that Juror No. 6 refused to participate in deliberations

for reasons other than his views on the merits. The record also supports this

finding, because the juror stated that he had been “[t]rying to figure out how to get

excused” from the jury well before jury deliberations commenced, that he knew he

wanted to be excused as soon as he entered the jury room, and that he was not

willing to engage in deliberations. This is another valid basis for excusing the

juror; we “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.”

Id. (quotation omitted).

We reject the argument that there was “any reasonable possibility that the

impetus” for Juror No. 6’s dismissal stemmed from his views on the merits of the

case.” Id. at 807. As noted above, Juror No. 6 emphasized that he had decided he

needed to be excused from the case well before jury deliberations began, and the

court could reasonably disbelieve his single statement that he felt “he was being

forced to give a different opinion in the room.” We have previously upheld the

dismissal of a juror who claimed that other jurors wanted to remove him because

of his views on the merits, because the court reasonably concluded that the juror

was not credible and there were other reasons for the dismissal. Id. at 811-12.

Moreover, Juror No.6 raised his concerns to the court just 95 minutes into

4 deliberations, which we have held indicates that he was not motivated by any

disagreement on the merits with other jurors. See id. at 811 (describing it as

“highly unlikely” that complaints about a juror were motivated by a disagreement

on the merits when the issue was raised a “little more than an hour after

deliberations began,” which is “very early in the process”).

In these circumstances, the district court did not abuse its discretion in not

questioning Juror No.6 or other jurors further. Because the court had sufficient

grounds to dismiss Juror No.6, additional questioning was not required. Id. at 808.

While a more intrusive inquiry may be justified where the trial court had no

grounds for dismissing the juror other than the juror’s request for dismissal, see

United States v. Decoud, 456 F.3d 996, 1017 (9th Cir. 2006), such an inquiry is not

required, and is generally discouraged, see Christensen, 828 F.3d at 808 (“A court

may not delve deeply into a juror’s motivations because it may not intrude on the

secrecy of the jury’s deliberations.”) (quotation omitted). We should avoid

substituting our reasonable choices over the trial judge’s rational decisions on

credibility and process. We therefore defer to the court’s considered decision not

to probe further than necessary and uphold its determination to dismiss the juror

for good cause.

4. The district court properly applied a sentencing enhancement for reckless

endangerment during flight. Macias fled the scene of the drug transaction where

5 law enforcement agents were present and sped at up to 90 miles per hour on the

highway, weaving between cars, confirming that he was trying to get away from

law enforcement. The court did not abuse its discretion in finding both that Macias

engaged in flight from law enforcement and that his conduct was reckless. See

United States v. Reyes-Oseguera, 106 F.3d 1481, 1483-84 (9th Cir. 1997).

Macias’s appeal is DENIED.

6

FILED

United States v. Macias, No. 19-10054

APR 29 2020

BERZON, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I concur in Parts 1 through 3 of the memorandum disposition, but

respectfully dissent from Part 4. I would grant Macias’s appeal based on the

district court’s dismissal of a juror without adequate inquiry into the juror’s

reasons for requesting dismissal, where the juror’s responses to the court’s

questions indicated a reasonable possibility that his request for dismissal was based

on his views of the merits of the case.

The court dismissed the juror after finding that he refused to deliberate and

that he was not credible. A court’s dismissal of a juror after deliberations have

commenced is improper if there is a reasonable possibility that the request for

dismissal stems from the juror’s views on the merits of the case. United States v.

Symington, 195 F.3d 1080, 1087 (9th Cir. 1999). Here, a juror informed the court

of his discomfort and nervousness regarding his jury service. In response to a

question about why he did not want to be a juror, the juror stated that he felt

pressured to “give a different opinion” in the jury room. Under these

circumstances, the district court should have acceded to defense counsel’s

request—after a lengthy colloquy—to ask the juror a further question regarding

any improper behavior by the other members of the jury, just as the district court

did in United States v. Decoud, 456 F.3d 996, 1005 (9th Cir. 2006). Decoud held

1 that the district court did not abuse its discretion in dismissing a juror in part

because the court, in recalling the juror to answer an additional question regarding

the other jurors’ behavior, ensured there was no reasonable possibility that the

juror harbored a reason for discharge other than her stated concerns. Id. at 1017.

The majority is correct that district courts “may not intrude on the secrecy

of the jury’s deliberations,” United States v. Christensen, 828 F.3d 763, 811 (9th

Cir. 2015) (quoting Symington, 195 F.3d at 1086), but misinterprets this instruction

to suggest that district courts are generally discouraged from asking questions

about the behavior of the other members of the jury when they already have

grounds to dismiss a juror. Although “necessarily constrained” by the mandate to

avoid intruding into the jury’s deliberations, a court may “rightly instruct[] each

juror questioned not to volunteer information beyond what the court asked and not

to discuss the content of deliberations or any juror’s views on the merits.” Id.

The district court in Decoud had sufficient grounds to dismiss a juror based

on her religious views after an initial round of questioning. The juror had not

indicated any pressure from other jurors, but the court still recalled the juror to ask

one further question, to eliminate the reasonable possibility that the request for

dismissal stemmed from the juror’s views of the merits. 456 F.3d at 1003-05,

1017. The court did not err in asking the additional question about any

“improprieties by the other jurors,” but rather “took care in inquiring into the

2 circumstances that gave rise to the juror’s request for discharge” and “ma[de] sure

that there was no reasonable possibility that the juror harbored some other reason

for discharge, such as her views on the merits of the case.” Id. at 1017.

The court’s adverse credibility finding cannot be sustained on the current

record. It appears to stem from the juror’s failure to inform the court, prior to the

commencement of deliberations, of his concerns regarding the proximity of his

home to the location of one drug transaction. Yet the court ascertained that the

juror was not in fact concerned about his safety. Had there been further inquiry,

what was really bothering the juror could well have been explained. As the juror

said, until he walked into the jury room, he did not fully appreciate the fact of

being a juror, and he then felt pressured to agree with his peers. The question the

court should have asked is why he felt that pressure.

For these reasons, I would grant the appeal.

3