                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JAN 19 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT




UNITED STATES OF AMERICA,                        No.   17-10057

              Plaintiff-Appellee,                D.C. No.
                                                 2:15-cr-00062-JCM-CWH-2
 v.

LOUIS MATTHEWS,                                  MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                             for the District of Nevada
                     James C. Mahan, District Judge, Presiding

                      Argued and Submitted January 10, 2018
                            San Francisco, California

Before: THOMAS, Chief Judge, and RAWLINSON and WATFORD, Circuit
Judges.

      Louis Matthews appeals his jury conviction for violations of 21 U.S.C. §§

841, 846, 924(c), and 924(j). We have jurisdiction over this appeal, 28 U.S.C. §

1291, and reverse his convictions and vacate his sentence.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      The district court violated Matthews’ Sixth Amendment right to a

unanimous verdict by an impartial jury when it dismissed the lone holdout juror. A

district court can dismiss a juror after deliberations begin for “good cause.” Fed.

R. Crim. P. 23(b)(3). When applying this review standard, we must “safeguard[ ]

the defendant’s [Sixth Amendment] right to a unanimous verdict from an impartial

jury.” United States v. Symington, 195 F.3d 1080, 1087 (9th Cir. 1999). Reversal

is required if a district court dismisses the juror and “the record evidence discloses

any reasonable possibility that the impetus for [the] juror’s dismissal stems from

the juror’s views on the merits of the case.” Id.

      The jury in this case announced it had reached a unanimous verdict.

However, polling of the jury in open court revealed an 11–1 split with Juror No. 8

as the lone holdout. The jury then continued deliberations. Later that day, the

judge informed counsel that Juror No. 8 left the jury room and “was sobbing and

crying.” The judge recounted that he separated Juror No. 8 from the jury, and

during an off-record interview outside the presence of counsel, Juror No. 8 stated

that “[she] can’t do this.” When the judge asked Juror No. 8 if the effect of the

deliberations prevented her from continuing, she stated, “I’m very upset. . . . And

we got in there, and they were saying . . . .” The judge cut her off at this point,

noting that he could not hear about the deliberations. When Juror No. 8 stated


                                           2
again that she could not continue, the judge dismissed her and seated an alternate

juror in her place. Given these facts, a “reasonable possibility” exists that the

dismissal of the sole holdout juror was related to the juror’s views of the case.

Therefore, pursuant to the requirements established in Symington, we must reverse

the convictions and remand for a new trial.

      Given our resolution of this case, we need not–and do not–reach any other

issue urged by the parties.



      REVERSED.




                                           3
                                                                           FILED
U.S. v. Matthews, Case No. 17-10057                                         JAN 19 2018
Rawlinson, Circuit Judge, concurring:                                   MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS

      I concur in the judgment of the court because the outcome is dictated by our

holding in United States v. Symington, 195 F.3d 1080, 1087 (9th Cir. 1999) and the

unusual facts of this case. I write separately to point out just how unusual those

facts are. It is extremely rare for a juror to disavow a unanimous verdict during a

poll of the jury. Indeed, one of the attorneys in this case informed the court that

this circumstance had never occurred before in his twenty-plus years of practicing

law. Faced with an extremely emotional juror who stated that she could not

participate any longer, and an unprecedented occurrence, the district court selected

the option that seemed most likely to allow deliberations to continue. Indeed, there

is some suggestion in the record that the judge was not even aware that the

distraught juror was the holdout juror. Nevertheless, the fact remains that under

our precedent, if there is a reasonable possibility that the juror’s dismissal stems

from the juror’s views on the case, the constitutional right to a unanimous verdict

by an impartial jury has been violated. See id. Because this extremely low

standard is met, I concur in the disposition.
