972 F.3d 1155
9th Cir.2020Background
- Defendants Litwin and Dr. Wetselaar were tried in a lengthy federal narcotics prosecution; jury deliberations began after ~35 trial days.
- Juror 5 (a former Philippine criminal defense lawyer and current paralegal) sought early excusal because her employer would pay jury service only two weeks; the district court denied the request after voir dire.
- Three hours into deliberations the jury sent a note: one juror “no matter what, she will not change her mind.” The court questioned Jurors 8 and 10, who reported Juror 5 refused to listen or consider others and was “confused” on a jury instruction.
- The court questioned Juror 5; she admitted saying “I will not change my mind” two-to-three times but said she was willing to deliberate; the court dismissed her for (1) refusing to deliberate and (2) harboring “malice toward the judicial process.”
- An alternate was seated and the jury convicted Litwin (on most counts); defendants appealed. The Ninth Circuit vacated the convictions and remanded for a new trial, holding the dismissal was error because the record showed a reasonable possibility the removal stemmed from Juror 5’s views on the merits.
- The Ninth Circuit declined to consider a post-argument district-court minute order that sought to supplement the record with after-the-fact declarations and emails.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Litwin) | Held |
|---|---|---|---|
| Whether dismissal of Juror 5 during deliberations was permissible | Juror 5 refused to deliberate and showed malice toward the court, giving good cause to remove her | Dismissal was effectively for her views about the insufficiency of the government’s case, which is impermissible | Reversed: record shows a reasonable possibility removal stemmed from juror’s views on the merits, so dismissal was erroneous |
| Whether alleged "malice toward the judicial process" justified removal | Court reasonably inferred malice from Juror 5’s earlier request to be excused and ongoing complaints | No evidence of bias or nullification; communications showed only hardship and limited objections | Rejected: record did not support finding of malice or that Juror 5 was not forthcoming |
| Whether refusal-to-deliberate finding was independently sufficient | Jurors reported she would not listen or change her mind; three admissions of “no matter what” support dismissal | Statements could reflect honest disagreement, or confusion over instructions; juror offered to explain and to continue deliberating | Rejected: given jury notes about instruction confusion and juror’s willingness, reasonable possibility dismissal was merit-based remained and court should have given further opportunity/instruction |
| Whether the error was structural or harmless beyond a reasonable doubt | Government: if not structural, error was harmless given strength of evidence | Litwin: error infected unanimity and is not shown harmless beyond a reasonable doubt | Court assumed harmlessness standard might apply but held government failed to prove harmlessness beyond a reasonable doubt; conviction vacated and remanded for new trial |
Key Cases Cited
- United States v. Symington, 195 F.3d 1080 (9th Cir. 1999) (reversed juror dismissal where dismissal may have derived from juror’s views on merits)
- United States v. Brown, 823 F.2d 591 (D.C. Cir. 1987) (juror may not be dismissed during deliberations for doubts about sufficiency of evidence)
- United States v. Christensen, 828 F.3d 763 (9th Cir. 2015) (district court deference; dismissal allowed only if no reasonable possibility action stemmed from merits)
- United States v. Thomas, 116 F.3d 606 (2d Cir. 1997) (reversal where juror dismissal could have been motivated by views on case rather than inability to follow law)
- Ramos v. Louisiana, 140 S. Ct. 1390 (2020) (Sixth Amendment requires unanimous jury verdict to convict)
- Chapman v. California, 386 U.S. 18 (1967) (constitutional error subject to harmless-error review must be harmless beyond a reasonable doubt)
- United States v. Hasting, 461 U.S. 499 (1983) (harmless-error inquiry asks whether it is clear beyond a reasonable doubt the jury would have convicted absent the error)