Concurring in part, dissenting 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.

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 discuss a note from the jury, which read:

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:

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 abilities. 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 questions asked of her. Juror Carlson also stated that the prob *1094 lems 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 Co-tey 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 [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 discussions.

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 question 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 unrelated 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 currently 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 lot of questions, and that the jurors had to refresh her memory. 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:

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 perspective. Juror Witter responded: “Yes, I do.”

Juror Smith testified that Juror Cotey wandered off looking for exhibits or testi *1095 mony 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 Cote/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 explain things to her after an issue had already been discussed. Juror Seaman stated that Juror Cotey would frequently “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 discussion, 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 Co-tey 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 Co-tey three or four times.

Juror Robinson stated that Juror Cotey was unable to comprehend, could not follow along, and her comments had “nothing whatsoever” to do with the subject matter under discussion. Juror Robinson stated further that Juror Cotey didn’t seem to have any idea of what the jury was doing. Juror Robinson 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 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 instructions. When asked if Juror Cotey’s problems involved a willingness 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 consideration, 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 *1096 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 discussing evidence for hours, Juror Cotey would say, “What document is that? Where did you see that?,” and the discussion would start all over.

After the final juror appeared, the trial judge heard arguments 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 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:

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 Ba-mond’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 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 speculation.

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 comprehend 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 Co-tey’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 inability to explain her views. This bit of conjecture ignores the jurors’ *1098 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 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 scrupulously 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 guessing 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 dismissing 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 impartial 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 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 evidence taken out of context, that the opinion reaches its conclusion.

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.

. Although Juror Cotey was not identified as the “juror in question,” her identity is obvious at this point in the proceedings.

. 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 o,f 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.

. An objective and careful analysis of the August 19 note discloses that the juiy 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 participate in deliberations.

. Each juror, including Juror Coley, was carefully admonished not to discuss 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.