                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS           July 16, 2003

                                                         Charles R. Fulbruge III
                       FOR THE FIFTH CIRCUIT                     Clerk



                           No. 02-20671




UNITED STATES OF AMERICA

                     Plaintiff - Appellee

     v.

NICHOLAS NNAJI, FREDDIE EVANS

                     Defendants - Appellants


          Appeals from the United States District Court
                for the Southern District of Texas
                         No. H-01-CR-472-2


Before KING, Chief Judge, and HIGGINBOTHAM and BARKSDALE, Circuit

Judges.

PER CURIAM:*

     Defendants Nicholas Nnaji and Freddie Evans appeal their

convictions, arguing that the district court erred in dismissing

a juror during jury deliberations.   We review a district court’s

decision to dismiss a juror during deliberations for an abuse of


     *
          Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.

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discretion.   See, e.g., United States v. Edwards, 303 F.3d 606,

631 (5th Cir. 2002), cert. denied, 123 S. Ct. 1272 (2003).

Further, we will not overturn a district court’s decision to

remove a juror unless the defendant is prejudiced, and we will

only find prejudice “if the juror was discharged without factual

support or for a legally irrelevant reason.”    Id. (quoting United

States v. Virgen-Moreno, 265 F.3d 276, 288 (5th Cir. 2001), cert.

denied, 534 U.S. 1095 (2002)).

     The district court did not abuse its discretion in this

case.   A district court may dismiss a juror for good cause and

permit a jury of eleven jurors to return the verdict.    See FED.

R. CRIM. P. 23(b)(3).   A juror’s unwillingness to deliberate gives

a district court good cause for removal.    See, e.g., Edwards, 303

F.3d at 631-34 (affirming dismissal of a juror who refused to

follow instructions and displayed a lack of candor to the court);

United States v. Baker, 262 F.3d 124, 128-32 (2d Cir. 2001)

(affirming dismissal of juror who refused to deliberate and

“sa[id] that the evidence is not going to change her mind”).      In

dismissing the juror in this case based on his unwillingness to

deliberate, then, the district court did not use a legally

irrelevant reason.

     Despite the defendants’ arguments to the contrary, the

district court’s factual finding that the dismissed juror refused

to deliberate is not clearly erroneous.    There is ample evidence

to support the fact that the juror simply would not deliberate:
juror after juror testified that the dismissed juror read a book

during deliberations, refused to review the evidence, refused to

participate in discussions, and refused to vote on the ultimate

question of guilt or innocence.

     For the foregoing reasons, the defendants’ convictions are

AFFIRMED.
