     Case: 17-41274      Document: 00515285278         Page: 1    Date Filed: 01/24/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit

                                                                             FILED
                                      No. 17-41274                    January 24, 2020
                                                                        Lyle W. Cayce
UNITED STATES OF AMERICA,                                                    Clerk


              Plaintiff - Appellee

v.

ROGELIO RAMOS, JR.,

              Defendant - Appellant




                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 7:17-CR-128-3


Before HAYNES, GRAVES, and DUNCAN, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:*
       Rogelio Ramos, Jr. appeals the judgment of the district court sentencing
him to ninety months of imprisonment for conspiracy to commit wire fraud.
He argues that (1) the district court erred in dismissing one of the jurors
(“Juror 13”) during deliberations; (2) the district court erred in allegedly
refusing to dismiss another biased juror; and (3) he received ineffective




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                 No. 17-41274
assistance of counsel. Because we conclude that the district court abused its
discretion, we VACATE and REMAND.
                 FACTS AND PROCEDURAL HISTORY
      Rogelio Ramos, Jr., and two others were indicted for conspiracy to
commit wire fraud. Ramos pleaded not guilty and proceeded to a jury trial
along with a codefendant.
      On the first day of trial, before the jury was seated, the district court
informed the parties that it had received a letter from a female juror stating
that she learned that a coworker would be testifying during the trial. The
prosecutor responded that the coworker/witness had likewise informed him
that she knew a juror. As a result, the prosecution said it planned to remove
that witness from the witness list.
      On the third day of trial, the district court informed the parties, outside
the presence of the jury, that it needed to address the issue of the juror who
worked with the Government witness who was a victim of the fraud but was
ultimately not called to testify.     After lengthy discussions regarding the
identities of the witness and the juror, the process by which the district court
would determine if the juror was impartial, related evidentiary issues, and
repeated requests by defense counsel for a mistrial and to excuse the juror, the
prosecutor interjected that he was unopposed to the court’s dismissing the
juror. The district court dismissed the juror, and an alternate juror (“Juror
13”) was seated as her replacement.
      Following several days of testimony, the case was submitted to the jury.
After the jury deliberated for a few hours, the district court received a note
stating, “Jurer [sic] #13 wants to know if we have to deliberate today or if we
can recess till tomorrow. He has a headache and wishes to leave.” The court
agreed to release the jury for the evening.


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                                  No. 17-41274
      The jurors sent various notes the following day. The first note at 10:55
a.m. said: “Your Honor, what steps can be taken when the majority of the jury
realize that a juror can not make an impartial decision based on evidence
provided? Juror based decision on assumptions and on defendant’s thinking.”
The court addressed the jury and encouraged them to continue deliberations.
The court also noted that:
            The court has received jury note number 3 which reads as
      follows, “Impasse.” The court could hear that the discussions have
      become very vocal and angry, so I asked the marshals to step into
      the room and make sure everything was okay. And the foreperson
      stepped out and said it was not okay, and that they were at an
      impasse and so I said, well you need to communicate with – that
      to me in writing if that’s the case. So that’s why this note just says
      one word impasse.

(Emphasis added).
      The jury sent a few more notes that afternoon indicating they were at an
impasse. During this time, defense counsel moved for a mistrial. The court
denied the motion and gave an Allen instruction. See Allen v. United States,
164 U.S. 492 (1896). Thereafter, the district court revealed a conversation with
Juror 13, who approached the judge before returning to deliberate, regarding
verbal attacks by other jurors who “got in his face.” Juror 13 also indicated he
felt uncomfortable going back into the deliberation room and wanted to make
sure the marshals would be outside the door.
      The foreperson subsequently sent a note and asked to meet with the
court. The judge met with the foreperson in his chambers and then later
informed the parties he had received a note and had met with the foreperson.
The court recounted to the parties the various allegations the foreperson made
to him regarding Juror 13, i.e., that he: (1) refused to look at the evidence; (2)
asked other jurors to look at evidence outside the trial evidence; (3) had a note
that said “Perez Rick is number 1, what else is there to know or what else is
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                                 No. 17-41274
there to do”; and (4) complained of being disabled and suffering from
headaches, was taking various medications, and had short-term memory loss.
      The district court said that it was going to have the foreperson repeat
the allegations for the record. The district court also provided the parties with
a “well wishing” card which contained a “religious message.”       Juror 13 had
given that card to all of the other jurors. The district court said the card had
no bearing on the issue of Juror 13’s dismissal. Importantly, the district court
did not disseminate the note allegedly written by Juror 13 about defense
counsel, “Perez, Rick.” Instead, the court merely recounted the foreperson’s
uncorroborated allegation.
      The court said that based on the foreperson’s uncorroborated allegations
regarding Juror 13, there was cause to dismiss him. Defense counsel objected
and unsuccessfully moved to dismiss the jurors who were allegedly abusing
Juror 13. The court placed the foreperson under oath and asked him to repeat
his concerns about Juror 13. The foreperson claimed that Juror 13 refused to
acknowledge the evidence and that he readily dismissed it, saying “he wants
to take a position based on [the district court interjected “things –” here]
assumptions.” When the district court asked, “[a]ll right. Does he want to --
does he bring in things that were not part of the evidence that he would like
for you all to base your decision on?” The foreperson answered, “[y]es. He’s
expressed –” before being interrupted again by the district court and told not
to finish. At this point, defense counsel unsuccessfully objected to the court
leading the witness.    The foreperson reiterated his claim, although with
slightly different language than the court indicated, that he had seen a note
inside Juror 13’s clear binder that said: “Perez, Rick, he is number one -- he is
number one, and then it said what else, is there more to say.” The foreperson
also alleged that Juror 13 mentioned that he had “short-term memory” and


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                                      No. 17-41274
headaches, “so he has a hard time grasping, understanding the subject we’re
telling him.”
       Defense counsel then asked the court to address the alleged threats
against Juror 13. The court refused, responding that based on the previous
conversation with Juror 13, the court did not believe he was credible or that he
had been threatened. The court said it did not believe what Juror 13 said
without it being verified by someone else. Yet, the court would not allow
anyone other than the foreperson an opportunity to corroborate or deny Juror
13’s claims. The court also did not allow Juror 13 an opportunity to fully
explain his concerns or to respond to the foreperson’s allegations. Further, the
court said that the marshals had checked on the jurors after the court heard
them arguing loudly, and the marshals confirmed that “everything was fine.”
This is contrary to the district court’s previous statement regarding the “very
vocal and angry” deliberations and the fact that everything was “not okay.”
       The foreperson elaborated on his statements regarding Juror 13,
explaining that several jurors told Juror 13 that they “needed to use the
evidence to come to a conclusion.” But Juror 13 “was adamant about not
looking at the evidence . . . and he just kept dismissing it.” In explaining what
he meant by this, the foreperson indicated that Juror 13 was giving more
credibility to the defense arguments than the other jurors wanted him to. 1 The
foreperson described the deliberations as “very intense” and heated. He stated



       1 The dissenting opinion’s reference to the play/movie Twelve Angry Men is surprising.
Obviously, it is a fictional jury, but if we indulge the reference for the moment, it supports
the majority opinion, not the dissenting opinion. It demonstrates the importance of each
juror to the outcome of a case and the fact that one juror can sway the other eleven. Had the
judge in that play eliminated Juror No. 8 early on, as many of his fellow jurors would have
supported at the time, the defendant would have been convicted. Instead, one by one, Juror
No. 8 convinced the other to acquit. While Twelve Angry Men is fictional, the fact that one
juror can influence the others and should not be lightly eliminated from the panel is not.

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                                 No. 17-41274
that nobody had threatened Juror 13, but that Juror 13 had caused several
other jurors, including the foreperson, to become frustrated, heated, loud and
tearful because of his refusal to agree with them. The court sent the foreperson
back to the jury room with instructions to discontinue deliberations. Perez had
previously acknowledged that he and Juror 13 knew each other from high
school. Further, Juror 13 acknowledged during voir dire that he knew Perez
and said he could be fair and impartial.
      Defense counsel then unsuccessfully moved for a mistrial based on a
hung jury and the misconduct of the other jurors. Instead, upon request of the
government and without further investigation, the district court dismissed
Juror 13 for good cause citing his misconduct and inability to participate
meaningfully in deliberations. The court summarized that Juror 13’s note
referencing Perez indicated bias toward the defense, that he relied on evidence
outside the record when deliberating, that he refused to examine the evidence
and participate, and that he was disabled and suffered from various medical
problems. Defense counsel requested an evidentiary hearing, including an
interview of the juror. The court denied the request. The remaining eleven-
person jury found Ramos guilty.       He was sentenced to ninety months of
imprisonment, to be followed by five years of supervised release. Ramos then
filed this appeal.
                          STANDARD OF REVIEW
      A district court may dismiss a juror for “good cause” after trial has begun.
Fed. R. Crim. P. 23(b)(2)(B). This court reviews a district court’s decision to
dismiss a juror for abuse of discretion. United States v. Pruett, 681 F.3d 232,
247 (5th Cir. 2012) (per curiam). “A district court abuses its discretion only
when its ruling is based on an erroneous view of the law or on a clearly
erroneous assessment of the evidence.” United States v. Ebron, 683 F.3d 105,


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                                  No. 17-41274
126 (5th Cir. 2012). “A factual finding is not clearly erroneous as long as it is
plausible in light of the record as a whole.” Id. at 126-27.
      This court has said that “[a] district court's decision to remove a juror is
discretionary whenever the judge becomes convinced that the juror's abilities
to perform his duties become impaired.” United States v. Virgen-Moreno, 265
F.3d 276, 288 (5th Cir. 2001) (internal marks and citations omitted). This court
has also said that “[a] juror’s inability to follow instructions is a legally valid
basis for dismissal. Similarly, a lack of candor can also serve as the basis for
dismissing a juror.” Ebron, 683 F.3d at 127 (internal citations omitted). This
court will not disturb a district court’s decision to remove a juror unless the
removal prejudiced the defendant. Prejudice will be found “if the juror was
discharged without factual support or for a legally irrelevant reason.” United
States v. Virgen-Moreno, 265 F.3d 276, 288 (5th Cir. 2001).
      This court has recognized, without adopting, the rule in several other
circuits that “a court may not dismiss a juror based upon its conclusion that
the juror is failing to participate in the deliberative process in accordance with
the law unless there is no possibility that the juror’s problem stems from his
view of the sufficiency of the evidence.” Ebron, 683 F.3d at 127 (emphasis
added) (quoting United States v. Edwards, 303 F.3d 606, 633 (5th Cir. 2002)).
This court concluded in Ebron that “the ‘no possibility’ rule is triggered only
when the district court dismisses a juror based on its ‘conclusion that the juror
is failing to participate in the deliberative process in accordance with the law.’”
Ebron, 683 F.3d at 127 (quoting Edwards, 303 F.3d at 633); see also United
States v. Patel, 485 F. App’x 702, 713 (5th Cir. 2012). This court has said that
“‘Rule 23’s good cause standard’ still applies when the district court offers
reasons other than those implicating deliberation.” Patel, 485 F. App’x at 713
(quoting Ebron, 683 F.3d at 128).


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                                        No. 17-41274
                                       DISCUSSION
* Juror 13
       Ramos asserts that the district court abused its discretion by dismissing
Juror 13. Specifically, Ramos asserts that the court erred by relying on the
foreperson’s statements regarding Juror 13 without also interviewing Juror 13
or any other jurors to confirm the veracity of the foreperson’s assertions.
Ramos contends that Juror 13 was simply viewing the evidence as he saw fit
and drawing his own conclusions, which frustrated the other jurors. Ramos
also points out that the foreperson stated that Juror 13 had “short term
memory” rather than “short term memory loss.” This, he argues, leads to
confusion about whether Juror 13 actually had short-term memory loss
affecting his capacity to deliberate. This confusion, he argues further, should
have been clarified through investigation. Finally, Ramos asserts that the
other jurors attempted to bully Juror 13 into submission and that the district
court failed to investigate that claim.
       While the scope of an investigation into juror misconduct is within the
discretion of the district court, the applicable authority requires that there be
an investigation. See Patel, 485 F. App’x at 712; Virgen-Moreno, 265 F.3d at
288; and United States v. Fryar, 867 F.2d 850, 854 (5th Cir. 1989). 2 Further,
“[s]uch an investigation may be conducted via careful juror questioning or any
other appropriate means.” Ebron, 683 F.3d 105, 125. 3


       2   The dissenting opinion concedes that the applicable authority requires an
investigation, but then takes issue with there being a threshold of an investigation. In doing
so, the dissenting opinion misapprehends the applicable law by suggesting our cases actually
say that the decision of whether to conduct an investigation into juror misconduct rests with
the court’s discretion. However, there is no authority for any such conclusion.
        3 Likewise, in the civil case of United States v. Hodge, Case No. 17-20720, --- F.3d ----

, 2019 WL 3727775, **8-9 (5th Cir. Aug. 8, 2019), there was a thorough investigation. In
Hodge, the court questioned the juror against whom allegations were made as well as all of
the other jurors before determining that there were various reasons to remove the juror in
question independent of the deliberative process. Id. at **8-9.
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                                  No. 17-41274
      In Patel, the district court “properly investigated juror conduct” after
receiving a note from a juror by giving both parties an opportunity to review
and research the issues of law raised in the note, hearing arguments on those
issues, and posing five questions using language proposed by the parties to
each juror. Id. at 712-13. The district court there indicated that it was “‘loathe
to excuse a juror in a criminal case,’ but credited the eight jurors who testified
that Juror 9 refused to deliberate and that, when questioned, she had lied.” Id.
at 713.
      Here, Juror 13 was removed based on allegations of debilitating health
issues, a pro-defense bias, and because he refused to consider the evidence and
deliberate. All of this information came from uncorroborated allegations made
by the jury foreperson. Juror 13 had a headache once at the end of a long day.
On Thursday, May 25, 2017, the last day of the trial, the jury began
deliberating at approximately 4:30 p.m. The district court told the jury:
            All right, so I'm going to dismiss you to begin your
      deliberations. I'd like for you-all to work as late as you reasonably
      can. But I understand people have commitments, so I'm just going
      to ask you to do the best you can. If you're close, then I'll ask, you
      know, stay a little longer. If you're not, then a reasonable hour –
      can we be at least until 5:30ish. Okay, I mean you-all talk about it.

The district court also instructed the parties to “[p]lease stay nearby. They’re
not going to stay that long.”
      At 7:15 p.m., Juror 13 inquired as to whether the jury had to continue
deliberating that night or if they could recess until the following morning
because he had a headache.       This was well past the time the court had
instructed the jury they would be finished. Additionally, Juror 13’s request
was pursuant to the court’s instruction that jurors just needed to say “we’d like
to retire for the evening” when they wanted to retire for the evening. This in
no way establishes that Juror 13 had any health issue that precluded him from

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                                     No. 17-41274
deliberating. Also, there is absolutely no evidence in the record that Juror 13’s
alleged disability in any way interfered with his ability to deliberate. Juror 13
simply had a headache one day after deliberating well past the time the court
told jurors they would be finished. The district court also characterized the
request at the time as being due to “just long day” that was “becoming an
endurance test.”       This is contradictory to the allegations made by the
dissenting opinion.
      The following day, after the district court had decided to remove Juror
13 and denied the request for an investigation by the defense or for it to be
allowed to make a record, the court “elaborated” on its explanation for the
earlier request to end deliberations for the day. The court said that Juror 13
had indicated his need for regular rest and declined the offer of Tylenol. But
the court also referenced the reasons it did not find Juror 13 credible, saying:
             Yeah, I don't find -- he didn't – I did not find to be a credible
      juror because for various reasons. He disclosed to the Court that
      he suffered from various medical problems and that he'd disabled
      [sic] and I think the record will reflect he was unemployed, he
      walks with a cane – he described that he suffered -- and he was
      appreciative of the Court when I told him that we can
      accommodate him, he could stand, and he thanked me for that.
             He -- I mean, I could describe his mannerisms. He's -- in his
      discussions with the Court, he advised the Court that he -- that his
      health is a large issue for him, and he spends his days caring for
      himself and making sure that his health is his first priority, this
      includes regular rest, and taking various medications. He wanted
      to not continue for the day because he said he suffered from
      headaches, and that he would get headaches, and when he would,
      he would generally like to go to sleep and take a nap.

      However, all of those reasons would have been disclosed during voir dire
and the court found none of them to be a basis for striking Juror 13 for cause. 4


      4  Furthermore, in this era where the law, by way of acts such as the Americans with
Disabilities Act, recognizes that people with disabilities can (and do) perform a myriad of
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                                        No. 17-41274
Additionally, there was no evidence that any disability or condition had
worsened. Moreover, the court offered no explanation as to how a disability or
walking with a cane would affect Juror 13’s credibility. In any event, the record
is unclear as to whether the district court actually met with Juror 13 multiple
times without disclosing it to the parties or if the court was combining
information gathered during voir dire with the note to recess for the night and
the conversation regarding verbal attacks. What is clear is that, despite the
dissenting opinion’s characterizations, the district court never had any “face-
to-face interaction” with Juror 13 regarding any of the foreperson’s allegations
against him.
       There is also no evidence that Juror 13 had a pro-defense bias or that he
refused to consider the evidence and deliberate. There is an uncorroborated
allegation by one juror about an awkwardly worded, somewhat bizarre note
referencing defense counsel. The existence of this alleged note was never
verified, and the note was not provided to the parties. Both Juror 13 and Perez
had previously fully disclosed their association. Further, Juror 13 affirmed he
could be impartial despite that association. Also, the foreperson’s allegations
provided no specific information as to what Juror 13 was refusing to consider
or how he was refusing to deliberate. The allegations instead indicated that
Juror 13 sided with the defense and simply would not agree with the other
jurors no matter how much they yelled and cried.
       Allowing the court discretion to determine the scope of an investigation
does not mean the court may refuse to conduct any investigation and remove



important jobs and tasks, the dissenting opinion’s acceptance of the district court’s notion
that a vague suggestion of “disability” should cause the elimination of a juror is disturbing. If
a “headache” and some “forgetfulness” were enough to eliminate a juror, we would have few
jurors left. While there certainly could be mental or physical disabilities of such a type as to
render a person unable to serve, much greater evidence than that suggested here must be
presented.
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                                 No. 17-41274
the juror anyway. There has to be an investigation to determine misconduct.
The district court had only the uncorroborated statements of the jury
foreperson but then failed to do any investigation. Ebron does not stand for
the proposition that it is proper for the district court to refuse to do any
investigation and to accept only allegations from one juror who clearly had
animosity toward Juror 13. Other than the jury foreperson’s uncorroborated
statements, there is absolutely nothing in the record to establish that it was
plausible that Juror 13’s alleged bias, health issues, and refusal to deliberate
warranted dismissal. Again, the district court never had any face-to-face
interaction with Juror 13 regarding the foreperson’s allegations.
      There was no factual support for the district court’s decision. Where a
juror is discharged without factual support, prejudice must be found, and this
court must conclude that the district court abused its discretion. Virgen-
Moreno, 265 F.3d at 288. Notably, in Virgen-Moreno, a note from one juror,
Juror Collins, was sufficient because Juror Collins said she, herself, was
having difficulty concentrating as a result of three deaths of family members
and friends during the week and she asked to be excused approximately 15
minutes after the jury retired to deliberate at 11:30 a.m. until the following
Monday. Here, Juror 13 said no such thing. In fact, Juror 13 was not even
asked.
      The district court abused its discretion by failing to do any investigation.
The district court heard the foreperson’s allegations and did nothing to confirm
or corroborate those allegations. The court did not interview Juror 13 or any
other jurors regarding these allegations. This is odd considering the court’s
adamant intention to just merely talk to the biased juror that Juror 13 replaced
and to rely solely on her representation of whether she could be impartial
regardless of the fact that she was dishonest during voir dire. The court only
removed that juror because even the government eventually agreed to
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                                   No. 17-41274
dismissal.     But, here, the court refused to investigate the foreperson’s
allegations and presumed them true without even asking Juror 13 or any other
jurors. The court also failed to investigate Juror 13’s claims regarding the
verbal attacks by other jurors and pressure to just agree with them. The court
also made conflicting statements regarding whether everything was “okay” in
the deliberation room.
      For these reasons, we conclude that the district court abused its
discretion in removing Juror 13.
* Juror bias
      Ramos asserts that his right to an impartial jury was violated because
the district court failed to initially dismiss a juror who worked with a
government witness/victim, to disclose evidence of potential bias known only
to the court and the government, and to conduct a hearing regarding the juror’s
potential bias. Ultimately, it was the dismissal of this juror which led to the
seating of Juror 13. While we do not decide whether this constituted an abuse
of discretion, the circumstances surrounding the removal of this juror were also
briefed and raised on appeal. We discuss those circumstances only to highlight
the stark contrast between the district court’s handling of this juror and its
handling of Juror 13.
      A defendant has a Sixth Amendment right to an impartial jury. See
United States v. Martinez-Salazar, 528 U.S. 304, 311 (2000); United States v.
Cooper, 714 F.3d 873, 878 (5th Cir. 2013); and U.S. Const. amend. VI. This
court has said: “Actual bias exists when the juror failed to answer a material
question honestly on voir dire, and a correct response would have provided a
valid basis for a challenge for cause.” Hatten v. Quarterman, 570 F.3d 595, 600
(5th Cir. 2009) (citations omitted).    “A claim of alleged bias is ordinarily
addressed in a hearing where the judge examines the juror and obtains
assurances of the juror's impartiality.” Id. (citations omitted). Further, there
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                                 No. 17-41274
are instances where a juror can be presumed biased as a matter of law. See
Solis v. Cockrell, 342 F.3d 392, 395-98 (5th Cir. 2003); see also Smith v.
Phillips, 455 U.S. 209, 222 (1982) (O’Connor, J., concurring).
      Prior to the start of trial on day one, the district court considered a
motion in limine by the defense regarding a number of witnesses the
government had failed to identify to the potential jurors. This identification
was to allow the potential jurors to indicate any relationship or any association
with any witnesses so the court could determine whether any potential jurors
needed to be excused for cause or the defense could decide to exercise a
peremptory challenge. Essentially, the government had interviewed witnesses
and supplemented their witness list after jury selection with five or more new
witnesses they planned to call to testify.
      Since a jury had already been seated, the court decided it would later ask
the already-selected jurors about the additional undisclosed witnesses and
then determine what to do because it was too late for the defense to exercise
its peremptory challenges at that point. The court then disclosed that it had
“received a letter from a juror advising the Court that she was made aware by
a co-worker that the co-worker was going to be testifying in Federal Court on
Tuesday.” The government then acknowledged that it had been informed by
the witness, a victim in this case, that she knew someone who was on the jury.
The government said that, as a result, it would not call that particular witness
but refused to identify the witness.
      The court continued with its plan to inquire, at some point, as to whether
any juror had knowledge of the new witnesses. The court did not disclose the
identity of the juror who had written the letter and did not require the
government to disclose the identity of the victim/witness. In the meantime,
the trial commenced.


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                                    No. 17-41274
         On the second day of trial, the defense again asked for the identity of the
witness who worked with a juror. The court countered that the government
would not be calling the witness. The defense explained that they could only
take it “on faith” that the government was not actually going to call that
witness because they did not know the identity of the witness to be able to
verify that the witness would not be called to testify. Despite the fact that the
court knew the identity of the juror and the government knew the identity of
the witness, the court determined that the defense did not need to know the
identity of either. There was then a discussion regarding whether the identity
of the victim/witness was disclosed to the jury. The district court and the
government, via two different prosecutors, repeatedly maintained that the
identity of this witness was not disclosed to the jury. The defense then asked
for a stipulation to be placed on the record. The district court replied: “All
right. Then we will place it on the Record in due course and maybe I can have
you all give it to me in-camera to make sure that this isn’t a witness that you
call.”
         The court finally said that the government would go ahead and give him
the name and he would “review the voir dire to see if that person was read off.
I mean, you all gave me a list of what was read, but then you gave me another
list that over a hundred people and I don’t know which list is accurate
anymore.” The court then addressed other unrelated issues and the trial
proceeded.
         Later that afternoon, the court called a bench conference on the juror
issue and acknowledged that the name of the witness/victim was indeed read
to potential jurors and the juror who was a coworker failed to acknowledge
during voir dire that she knew and worked with the witness/victim. Instead,
apparently the witness and juror later somehow conveyed to one another that
each was involved in the case and eventually decided at some point over the
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                                        No. 17-41274
next few weeks to inform the court and the government. The jury was selected
on May 2, 2017, and then excused until May 16, 2017, for trial. But, again, we
do not know exactly when the court was notified by the juror and when the
government was notified by the witness.
      The defense then asked that the juror be excluded, arguing that under
this court’s case law, there is bias if the juror fails to answer the question. See
Hatten v. Quarterman, 570 F.3d 595, 600 (5th Cir. 2009) (“Actual bias exists
when the juror failed to answer a material question honestly on voir dire, and
a correct response would have provided a valid basis for a challenge for
cause.”). The court indicated that the juror and witness both worked at a
school. The district court eventually said that if there was “any issue with the
juror, then my intention is to speak to the juror” to determine why she did not
acknowledge her co-worker during voir dire. 5 The defense then moved for a
mistrial.
      Even after it was revealed that the juror failed to acknowledge her
relationship with a witness during voir dire, the district court continued to
suggest reasons for the failure. The court then revealed that he also knew the
juror and her husband and said they are a prominent family in McAllen. The
government then posited, “[i]t’s just starting to raise a lot of issues and
concerns, Your Honor. I mean –” which the court interrupted with, “And it’s a
very prominent family in this community, McAllen.” The defense again moved
for a mistrial. At various times, the defense tried to explain that, in addition
to the juror’s failure to acknowledge the relationship, the intense media
coverage of this case would make it highly unlikely that this juror would vote
in a way that would negatively affect her coworker.




      5   This is different from the district court’s handling of Juror 13 during deliberations.
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                                   No. 17-41274
      The district court finally said, “[w]e can look at all of this tomorrow
morning.” The jury was brought back in and the trial re-commenced. On the
third day of trial, the district court stated:
      Before we bring in the jury, I feel like we needed to resolve the
      issue of what to do, if anything, with regard to a juror who is
      acquainted with a victim whose name was read during the voir dire
      as being a potential witness, and who did not make any response
      to that question asking about if anyone was acquainted with these
      witnesses. So I feel like I needed to address with her this morning.

      The court asked if anyone objected to addressing this matter with the
juror. The defense said that it needed to state some objections on the record.
The defense also explained the reasons supporting the removal of the juror.
      After much discussion, the court denied the motion to strike the juror
and the motion for a mistrial. The court then recounted plans to have an
informal discussion with the juror in chambers because he knew her
personally. The defense asked for a record. The judge indicated that he could
not do that in his office but said maybe he could record it with his cell phone
or something. Then it was decided that the juror would be questioned in the
courtroom. The court said:
      I’m going to have her brought to my chambers. I’m going to let her
      know that I’m going to bring her into the courtroom because that’s
      the only place we have a recording device, and I need to ask her a
      few questions about this, and then we’ll bring in here. I’ll just sort
      of ask her informally. When I’m done I’ll invite you all in, we can
      play it back or I can just tell you what she said.

The court then acknowledged that he was “not really sure” about what to ask
the juror.    After additional discussion with the court, the government
eventually said, “to cut through these issues,” it was unopposed to this juror’s
dismissal. Since the defense had repeatedly moved for dismissal, the court



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                                  No. 17-41274
finally agreed to dismiss the juror now that the government also agreed. Juror
13, an alternate, was then seated.
       Based on our case law, it is clear that this juror was biased because she
failed to acknowledge that she knew and worked with one of the
victims/witnesses. See Hatten, 570 F.3d at 600. So, the question then becomes
whether the presence of this juror for three days of the trial had any potential
to taint the remaining jurors. Although the juror was eventually dismissed, it
took days of delay to get to that point and it was only done then because the
government finally decided not to oppose dismissal. The tardy removal in no
way minimizes any impact that juror may have had on the rest of the panel
during the course of the trial. Additionally, it is unclear at what point the court
learned of the problem. The court would not release to counsel the juror’s letter
to him.
      Because we have already decided that the dismissal of Juror 13 was
reversible error, we do not decide this issue.
* Ineffective Assistance of Counsel
      Ramos asserts that counsel rendered ineffective assistance by (1) failing
to advise Ramos that he should attend jury selection; (2) representing Ramos
despite a conflict of interest; (3) leaving the courtroom during the
Government’s case in chief; and (4) failing to lodge certain objections and to
adequately examine a witness.
      The Supreme Court has emphasized that a 28 U.S.C. § 2255 motion is
the preferred method for raising claims of ineffective assistance of counsel.
Massaro v. United States, 538 U.S. 500, 503-09 (2003). This court generally
declines to review ineffective assistance claims on direct appeal. United States
v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014).     We have “undertaken to resolve
claims of inadequate representation on direct appeal only in rare cases where
the record allowed us to evaluate fairly the merits of the claim.” United States
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                                 No. 17-41274
v. Higdon, 832 F.2d 312, 314 (5th Cir. 1987). In most instances, we qualify a
claim as a “rare case” warranting review only when it was raised and developed
in a post-trial motion to the district court. United States v. Stevens, 487 F.3d
232, 245 (5th Cir. 2007). Ramos did not raise his ineffective assistance claims
in the district court at any time.     Because the record is not sufficiently
developed to allow for a fair consideration of the claims, we decline to consider
them on direct appeal without prejudice to his right to raise the claims on
collateral review. See Isgar, 739 F.3d at 841.
                                CONCLUSION
      For the reasons set out herein, we VACATE AND REMAND.




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                                  No. 17-41274
STUART KYLE DUNCAN, Circuit Judge, dissenting:
      In the classic 1957 movie Twelve Angry Men, Henry Fonda plays Juror
#8, the holdout whose relentless focus on the evidence ultimately persuades
fellow jurors of the defendant’s innocence. His nemesis is Juror #3, played by
Lee J. Cobb, who nurses a bias against the defendant, ignores evidence, and
browbeats other jurors. But not every holdout juror is Henry Fonda. Some may
be Lee J. Cobb. In this case, the district court dismissed Juror #13, finding him
more Cobb than Fonda. Our precedent allows the district court to make this
decision even if the recalcitrant juror turns out to be the only one standing
between the defendant and a guilty verdict. See United States v. Edwards, 303
F.3d 606, 634 (5th Cir. 2002) (noting that “we have previously made clear that
hold-out jurors are not immune from dismissal based upon just cause” (citing
United States v. Huntress, 956 F.2d 1309, 1312–13 (5th Cir. 1992)).
      Appellate judges must defer to the district court’s on-the-ground
discretion in making these sensitive calls. We have “emphasize[d] that a
district court, based on its unique perspective at the scene, is in a far superior
position than [we are] to appropriately consider allegations of juror
misconduct, both during trial and during deliberations.” United States v.
Ebron, 683 F.3d 105, 126 (5th Cir. 2012) (quoting United States v. Boone, 458
F.3d 321, 329 (3d Cir. 2006)). Based on that deferential posture, I would find
the district court did not abuse its discretion when it dismissed Juror #13. The
court made findings sufficient to show good cause for dismissal, and those
findings were plausible in light of the record as a whole. Specifically, the court’s
findings were supported by sworn testimony from the jury foreperson, face-to-
face interaction with Juror #13, and facts confirmed by defense counsel.
      I respectfully dissent.




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                                  No. 17-41274
                                         I.
      As the majority opinion correctly notes, Maj. Op. at 6, a district court
may dismiss a juror for good cause even after trial has begun. Fed. R. Crim. P.
23(b)(2)(B). Valid grounds for dismissal include “[a] juror’s inability to follow
instructions,” Ebron, 683 F.3d at 127 (citing Edwards, 303 F.3d at 631), and “a
lack of candor.” Id.; see also, e.g., United States v. Fryar, 867 F.2d 850, 853 (5th
Cir. 1989) (explaining that “[t]he district court has the discretion to excuse an
untruthful juror”). The majority also recites the correct standard of review: we
review a district court’s decision to dismiss a juror for abuse of discretion. Maj.
Op. at 6 (citing United States v. Pruett, 681 F.3d 232, 247 (5th Cir. 2012) (per
curiam)). “A district court abuses its discretion only when its ruling is based
on an erroneous view of the law or on a clearly erroneous assessment of the
evidence.” Ebron, 683 F.3d at 126. “A factual finding is not clearly erroneous
as long as it is plausible in light of the record as a whole.” Id. at 126–27.
      The parties do not dispute that the district court made factual findings
in support of dismissing Juror #13 or that, if true, those findings are legally
sufficient to show good cause. Instead, the only dispute is whether the findings
themselves are supported by the evidence. The proper question before us, then,
is not whether the district court’s findings are the best conclusions it could
have drawn but instead whether those findings are “clearly erroneous.” Ebron,
683 F.3d at 126. If the findings are “plausible in light of the record as a whole,”
there is no clear error and therefore no abuse of discretion. Id. at 126–27.
                                        II.
      In dismissing Juror #13, the district court articulated four distinct
findings on the record. It found that Juror #13 (1) refused to examine the
evidence and participate in deliberations with fellow jurors, (2) attempted to
rely on evidence outside the record, (3) indicated bias toward defense counsel,
and (4) suffered from health issues, including headaches and a short-term
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                                  No. 17-41274
memory problems, that interfered with his ability to deliberate. While the
district court primarily relied on the jury foreperson’s sworn on-the-record
testimony for these findings, the court also drew from its face-to-face
interaction with Juror #13 (which the court recounted on the record) and from
defense counsel’s statements confirming information revealed during voir dire.
      With respect to Juror #13’s bias and refusal to deliberate, the foreperson
testified that Juror #13 failed to follow instructions by refusing to consider the
evidence and by relying on outside evidence. According to the foreperson,
several jurors reminded Juror #13 that the group “needed to use the evidence
to come to a conclusion,” but Juror #13 “was adamant about not looking at the
evidence” and “just kept dismissing it.” The foreperson stated that during the
“intense” deliberations no one had threatened Juror #13, but that Juror #13
had caused other jurors to become frustrated and cry based on his refusal to
follow the court’s instructions to consider the evidence. See, e.g., United States
v. Fattah, 914 F.3d 112, 149 (3d Cir. 2019) (explaining that good cause for
dismissal exists under Rule 23(b) “where a juror refuses to apply the law,
refuses to follow the court’s instructions, refuses to deliberate with his or her
fellow jurors, or demonstrates bias”) (citations omitted).
      The foreperson also stated that Juror #13 had penned a note saying
“Perez”—the defendant’s counsel—was “number one . . . what else is there.”
The court connected this back to voir dire when Juror #13 had admitted
knowing Perez. According to the court, the voir dire admission took place off
the record during a bench discussion, and nothing suggests the foreperson
knew about it. After the court heard the foreperson’s testimony about the note,
Perez confirmed on the record that he knew Juror #13 along with his wife and
son and that they had a connection from a prior criminal case. Even though
during voir dire Juror #13 had professed an ability to remain unbiased, the
new evidence about the note undermined that claim and supported the court’s
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                                  No. 17-41274
finding that Juror #13 had a pro-defense bias. See, e.g., United States v.
Thomas, 116 F.3d 606, 613 (2d Cir. 1997) (noting that “Rule 23(b) dismissals
have been upheld repeatedly in cases where the trial court found that a juror
was no longer capable of rendering an impartial verdict” because, inter alia, a
juror was “discovered to have a relationship with one of the parties”) (and
collecting decisions); cf. Brooks v. Dretke, 444 F.3d 328, 329–30 & n.11 (5th Cir.
2006) (surveying Supreme Court and circuit law on jurors’ “implied bias”).
      In addition, Juror #13 complained directly to the district court about his
health problems and was unable to deliberate on the first day due to these
complications. He indicated that “he suffered from various medical problems,”
that he was “disabled,” and that “he suffered from headaches” during which
“he would generally like to go to sleep and take a nap.” He also stated that he
suffered from “short-term memory,” which the district court interpreted to
mean short-term memory loss. The foreperson confirmed that Juror #13’s
health-related complaints were a problem during deliberations, as they
hindered Juror #13’s ability to understand the proceedings. See, e.g., Huntress,
956 F.2d at 1312 (observing “it is within the trial judge’s sound discretion to
remove a juror whenever the judge becomes convinced that the juror’s abilities
to perform his duties become impaired”) (quoting United States v. Dominguez,
615 F.2d 1093, 1095 (5th Cir. 1980) (cleaned up)).
      Although the district court did not interview Juror #13 on the record, the
court did have a one-on-one interaction with him when he claimed that other
jurors were harassing him. Based on that interaction, the court concluded that
it “did not believe” Juror #13 was “credible.” In virtue of its “unique perspective
at the scene,” the district court was in a “far superior position” to draw such
conclusions. Ebron, 683 F.3d at 126 (citation and quotation marks omitted).




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                                  No. 17-41274
      At the very least, this record shows that the district court’s findings
about Juror #13 were plausible. Therefore, the district court did not abuse its
discretion in dismissing Juror #13.
                                       III.
      In finding otherwise, the majority opinion errs in three ways. First, the
majority advances a minimum investigatory threshold for juror misconduct not
found in our law. Second, the majority incorrectly asserts that the district court
refused to conduct any investigation. Finally, the majority misapplies the
standard of review.
      The majority opinion begins by stating that “[w]hile the scope of an
investigation into juror misconduct is within the discretion of the district court,
the applicable authority requires that there be an investigation.” Maj. Op. at
8. Since there plainly was an investigation, see infra, the majority can only be
suggesting that the failure to clear a certain investigatory threshold—namely,
interviewing other jurors and Juror #13 himself—fatally compromises the
court’s findings. For this proposition, the majority cites four cases: Patel,
Virgen-Moreno, Fryar, and Ebron. All are distinguishable, and none sets a
standard for what kind of investigation a court must perform before making
findings related to juror dismissal. To the contrary, our cases have long held,
without qualification, that “the scope of an investigation into juror misconduct
rests with the court’s discretion.” Fryar, 867 F.2d at 854 (citing Tillman v.
United States, 406 F.2d 930, 938 (5th Cir. 1969)).
      In Patel, an unpublished opinion, the district court conducted an
extensive investigation before dismissing a juror for failing to follow the court’s
instructions. 485 F. App’x 702, 712 (5th Cir. 2012). The investigation included
interviewing each juror using prearranged questions agreed upon by both
parties. Id. at 712–13. But while the district court’s method of investigation
may have been admirable—and, in our words affirming the dismissal, “wise”—
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                                   No. 17-41274
we did not suggest that such an investigation is required in every case. Id. at
713. To the contrary, Patel affirmed that district courts “enjoy wide discretion
to determine the proper scope of an investigation into whether just cause to
dismiss exists.” Id. at 712 (quoting Edwards, 303 F.3d at 631). Moreover, the
appellant in Patel did not argue that there should have been a more thorough
investigation; he argued that the investigation went too far and that
questioning every juror was unjustified. Id. We held only that the investigation
did not exceed the ceiling for such matters, not that it represented the floor. As
a result, it is hard to see how Patel helps the majority.
      Virgen-Moreno is similarly unhelpful. In that case, the district court
conducted no investigation other than reading a note from a juror who asked
to be excused because she was having trouble concentrating. 265 F.3d 276, 287
(5th Cir. 2001). The district court made no attempt to verify the note by
speaking with the juror, nor did the court consult with any other jurors, under
oath or otherwise. Id. We affirmed the dismissal, recognizing that the reasons
offered in the juror’s note “were sufficient factual support for the district court’s
decision.” Id. at 288. Thus, Virgen-Moreno also fails to support the majority
opinion and particularly its notion that the district court here was obligated to
corroborate the sworn testimony of a jury foreperson.
      Fryar, too, is inapplicable. The precise issue there was not whether a
juror had been wrongfully dismissed but whether the circumstances of the
dismissal prejudiced the remaining jurors against the defendant (who,
ironically, was on trial for jury tampering). 867 F.2d at 853–54. Despite evenly
split testimony from the other jurors, the district court concluded that a
particular juror’s story about being approached during sequestration was false.
Id. at 852. The district court dismissed the juror for lying, but—after checking
with the other jurors to confirm they could still be impartial—allowed the trial
to proceed. Id. The defendant later moved for a new trial, arguing that the
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                                      No. 17-41274
dismissed juror’s story was true and presenting corroborating evidence. Id. at
853. The district court denied the motion, and we affirmed. Id. at 855. We
recognized that “the scope of an investigation into jury misconduct is within
the district court’s discretion,” id. at 854, but said nothing about the
investigatory threshold in cases where a juror refuses to participate in
deliberations.
       While closer factually to this case, Ebron actually undermines the
majority’s position. In that case, which involved a deadlocked jury in a murder
trial, the district court interviewed all the jurors after the foreperson alleged
that one juror had made comments displaying a bias in favor of defense
counsel. 1 683 F.3d at 123. But like Patel, the issue in Ebron was whether the
district court went too far in interviewing all the jurors. Id. at 125. We held
only that “[s]uch an investigation may be conducted via careful juror
questioning or any other appropriate means” but never suggested that
questioning every juror was obligatory. Id. (emphases added). To the contrary,
we cautioned that a court’s investigation of juror misconduct must balance
“[p]reserving the secrecy of jury deliberations” on the one hand against
ensuring “juror compliance with instructions” on the other. Id. at 125.
Accordingly, we warned that district courts “‘should be more cautious in
investigating juror misconduct during deliberations than during trial, and
should be exceedingly careful to avoid any disclosure of the content of
deliberations.’” Id. (quoting Boone, 458 F.3d at 329). Ebron’s nuanced advice to
district courts is incompatible with the majority’s view that the court was
obligated to conduct a more searching investigation of Juror #13.




       1 The Ebron opinion does not indicate whether any of these interviews, including that
of the foreperson, took place under oath.
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                                  No. 17-41274
      In a footnote, the majority mentions our recent decision in United States
v. Hodge, a civil case involving a similar standard for juror dismissal. 933 F.3d
468, 480 (5th Cir. 2019). Maj. Op. at 8 n.3. In Hodge, the foreperson testified
about an obstinate and threatening juror without revealing the juror’s identity.
An earlier jury note had described one holdout juror who donned earplugs and
refused to deliberate. Id. at 479. The district court responded by interviewing
all the jurors one-by-one under oath. Id. at 480. When the court finally reached
Juror #7, that juror denied threatening anyone but admitted wearing earplugs.
Id. The court dismissed Juror #7, noting it “did not believe he was telling the
truth.” Id. at 481. The court found “credible evidence the juror had not
participated in the deliberations and that ‘he threatened at least one fellow
juror,’” and we affirmed. Id. at 480–81 (citing Ebron, 683 F.3d at 125–28). But
critically, like the previous cases, we never suggested that interviewing all
jurors is mandatory. Also, the juror interviews in Hodge did little to corroborate
the foreperson’s testimony and primarily served to identify the offending juror.
Here, unlike in Hodge, there was never any doubt as to which juror was
refusing to deliberate. The district court, the lawyers, and the foreperson all
identified him as Juror #13—there was no need to ferret out his identity.
      At most, the cases cited by the majority for its investigatory threshold
requirement show that a more intrusive investigation, such as interviewing
jurors one-by-one under oath, may sometimes be warranted—taking account
of the need to protect the secrecy of jury deliberations. No one disputes that
point. But what the cases fail to show is that a district court must interview
jurors one-by-one under oath before dismissing a juror for good cause.
      Second, the majority errs by concluding that the district court “refuse[d]
to conduct any investigation” and made its decision with “no factual support.”
Maj. Op. at 11, 12. As discussed above in Part II, the district court did
investigate the matter and did have factual support for its findings. The court
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                                  No. 17-41274
swore in the jury foreperson to testify on the record and allowed the lawyers
on both sides to question the foreperson as they saw fit. The court also solicited
information from Perez, Ramos’s counsel, in order to corroborate the bias
suggested by Juror #13’s note. While the court declined to conduct the sort of
investigation requested by Ramos—i.e., a separate evidentiary hearing—it
cannot be said that the court refused to conduct any investigation whatsoever.
And the majority’s assertion that there was “no evidence that Juror 13 had a
pro-defense bias or that he refused to consider the evidence and deliberate” is
mistaken. Maj. Op. at 11. The foreperson testified to these facts under oath,
and Ramos’s counsel corroborated that Juror #13 previously knew him.
      Third, while the majority opinion correctly articulates our well-
established standard of review for juror dismissal, it misapplies that standard.
The only question before us is whether the court’s findings are clearly
erroneous—and “‘[a] factual finding is not clearly erroneous as long as it is
plausible in light of the record as a whole.’” Ebron, 683 F.3d at 126–27 (quoting
United States v. Jacquinot, 258 F.3d 423, 427 (5th Cir. 2001)). The majority
does not explain what makes the court’s findings about Juror #13 implausible
in light of the entire record. The majority instead faults the district court for
not performing a more thorough investigation. But that alone does not
establish that the court’s findings, based on the investigation it did undertake,
were “implausible”—especially in light of the deference we must give to trial
judges in determining the credibility of witnesses in their own courtrooms.
Ebron, 683 F.3d at 126.
      If we were in the district judge’s shoes, perhaps we would have done
things differently. That is not our role here, however. The sole question before
us is whether the district court’s findings were plausible in light of the record
as a whole. In light of the foreperson’s sworn testimony, the district court’s
face-to-face interaction with Juror #13, and the facts revealed by defense
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                                  No. 17-41274
counsel and at voir dire, I cannot find that the district court’s factual findings
were implausible. Therefore, I respectfully dissent.




                                       29
