UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v. BENJAMIN MACIAS,

Defendant

- Appellant. No. 19

- 10054
D.C. No. 2:15

- cr - 00125

- GEB

- 1 Eastern District of California, Sacramento
ORDER

Before: BERZON and IKUTA, Circuit Judges, and LEMELLE, * District Judge. The dissent to the memorandum disposition filed on April 29 , 2020, and published at 2020 WL 2071541 , is amended to correct a citation and filed concurrently with this order.

* The Honorable Ivan L.R. Lemelle, United States District Judge for the Eastern District of Louisiana, sitting by designation. 

# FILED

JUN 16 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALSNOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA ,

P laintiff

- Appellee ,

v. BENJAMIN MACIAS ,

Defendant

- Appellant

. No. 19

- 10054
D.C. No. 2:15

- cr - 00125

- GEB

- 1

MEMORANDUM *

Appeal from the United States District Court for the Eastern District of California Garland E. Burrell, Jr., District Judge , Presiding

Submitted April 15 , 2020 ** San Francisco , California Before: BERZON and IKUTA, Circuit Judges, and LEMELLE, *** Senior District Judge. Benjamin Macias appeals his conviction and sentence for drug and firearms charges based on a series of cocaine transactions between December 2014 and July

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** This appeal is ordered submitted on the briefs as of April 15, 2020, pursuant to Fed. R. App. P. 34(a)(2).

*** The H onorable Ivan L.R. Lemelle, Senior United States District Judge for the Eastern District of Louisiana, sitting by designation. 

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JUN 16 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

2015. We review a possible violation of the Sixth Amendment de novo, United States v. Myers , 930 F.3 d 1113, 1118 (9th Cir. 2019) , and the admission of
evidence for abuse of discretion and prejudicial error, United States v. Carpenter , 923 F.3d 1172, 1180

- 81 (9th Cir. 2019) . We review for abuse of discretion both the application of a sentencing enhanceme nt and the dismissal of a juror after
deliberations have commenced

. United States v. Gasca

- Ruiz , 852 F.3d 1167, 1170 (9th Cir. 2017) (en banc); United States v. Christensen , 828 F.3d 763, 806 (9th Cir. 2015)

. We deny Macias’s appeal and affirm the distri ct court’s rulings.
1. Macias’s argument that only he had the authority to waive time for purposes of a constitutionally speedy trial is unavailing. Macias rests his argument on an analogy to McCoy v. Louisiana , 138 S. Ct. 1500 (2018) . D istinguis hing decisions reserved for the client from those which are the lawyer’s province , McCoy noted that t rial management is generally controlled by counsel. Id. at 1508.
As counsel’s trial management authority applies to scheduling matters, includin g agreements to delay trial, New York v. Hill , 528 U.S. 110, 115 (2000), Macias’s analogy to McCoy is inapposite. This court has evaluated constitutional speedy trial claims under the framework laid out in Barker v. Wingo , 407 U.S. 514 (1972), even where a defendant disagreed with his counsel’s trial scheduling decisions , United States v.
Lam , 251 F.3d 852, 854

- 55 (9th Cir. 2001). As Macias made no argument to this3

court under the Barker framework, and in fact specifically disclaimed the applicability of t he framework, we do not reach any such analysis.
2. Any err or in admitting evidence of drug sales by Macias for which he was not charged under Rule 404(b) of the Federal Rules of Evidence was harmless

. See Carpenter , 923 F.3d at 1182

- 83

. As Macias acknowledges, the government’s case against him was overwhelming even excluding this evidence.
3

. The court did not abuse its discretion in dismissing J uror #6 after deliberations began because J uror No. 6 was discharged for good cause and the re is no reasonable possibility that the dismissal was based on the juror’s views of the
merits

. See United States v. Symington , 195 F.3d 1080, 1087 (9th Cir. 1999). The court made two findings that were supported by the record and were valid grounds for dismissing Juror No. 6. First, the court held that Juror No. 6 was not credible in claiming he had safety concerns, because the record showed that Juror No. 6 “was trying to figure out how to get off this case” even before jury de liberations began, and failed to communicate his alleged safety concerns to the judge before deliberations despite receiving instructions about how to do so. A court’s determination that a juror “was untruthful with the court and untrustworthy” is a valid basis for discharging a juror , a nd “ [w] e afford special deference to a trial cour t’ s adverse credibility finding because the determination of credibility is largely one of demeanor.”4

Christensen , 828 F.3d at 808 (quotation omitted). Second, the court held that Juror No. 6 refused to participate in deliberations for reasons other than his views on the merits. The record also supports this finding, because the juror stated that he had been “ [t] rying to figure out how to get excused” from the jury well before jury deliberations commenced, that he knew he wanted to be excused as soon as he entered the jury room, and that he was not willing to engage in deliberations

. This is another valid basis for excusing the juror; we “generally defer to the dist rict court’s good cause determinations because the district court is in the best position to evaluate the jury’s ability to deliberate.”
Id. (quotation omitted)

. We reject the argument that there was “any reasonable possibility that the impetus” for Jur or No. 6 ’ s dismissal stemmed from his views on the merits of the
case.” Id. at 807. As noted above, Juror No. 6 emphasized that he had decided he needed to be excused from the case well before jury deliberations began, and the court could reasonably disb elieve his single statement that he felt “he was being forced to give a different opinion in the room

. ” We have previously upheld the dismissal of a juror who claimed th at other jurors wanted to remove him because of his views on the merits, because the c ourt reasonably concluded that the juror
was not credible and there were other reasons for the dismissal. Id. at 811

- 12

. Moreover, Juror No.6 raised his concerns to the court just 95 minutes into5

deliberations, which we have held indicates that he was no t motivated by any disagreement on the merits with other jurors. See id. at 811 (describing it as “highly unlikely” that complaints about a juror were motivated by a disagreement on the merits when the issue was raised a “little more than an hour after
de liberations began,” which is “very early in the process”). In these circumstances, the district court did not abuse its discretion in not questioning Juror No.6 or other jurors further. Because the court had sufficient grounds to dismiss Juror No.6, additional questioning was not required

. Id. at 808. While a m ore intrusive inquiry may be justified where the trial court had no grounds for dismissing the juror other than the juror’s request for dismissal, see United States v. Decoud , 456 F.3d 996, 1017 (9th Cir. 2006), such an inquiry is not required, and is gene rally discouraged , see Christensen , 828 F.3d at 808 (“A court may not delve deeply into a juror’s motivations because it may not intrude on the secrecy of the jury’s deliberations.”) (quotation omitted)

. We should avoid substituting our reasonable choices over the trial judge’s rational decisions on credibility and process. We therefore defer to the court’s considered decision not to probe further than necessary and uphold its determination to dismiss the juror for good cause. 4. The district court prope rly applied a sentencing enhancement for reckless endangerment during flight. Macias fled the scene of the drug transaction where6

law enforcement agents were present and sped at up to 90 miles per hour on the highway, weaving between cars, confirming that he was trying to get away from law enforcement. The court did not abuse its discretion in finding both that Macias engaged in flight from law enforcement and that his conduct was reckless. See United States v. Reyes

- Oseguera , 106 F.3d 1481, 1483

- 84 (9th Cir. 1997). Macias’s appeal is DENIED.1 United States v. Macias , No. 1 9

- 10054 BERZON, Circuit Judge, dissenting:
I concur in Part s 1 , 2, and 4 of the memorandum disposition, but respectfully
dissent from Part 3

. I would grant Macias’s appeal based on the district court ’s
dismissal of a juror without adequate inquiry into the juror’s reasons for requesting
dismissal , where the juror’s responses to the court’s questions indicated a reasonable possibility that his request for dismissal was based on his views of the
merits of the case

. The court dismissed the juror after finding that he refused to deliberate and
that he was not credible. A court’s dismissal of a juror after deliberations have commenced is improper if there is a reasonable possibility that the request for
dis missal stems from the juror’s views on the merits of the case. United States v. Symington , 195 F.3d 1080, 1087 (9th Cir. 1999). Here, a juror informed the court of his discomfort and nervousness regarding his jury service. In response to a question abou t why he did not want to be a juror, the juror stated that he felt pressured to “give a different opinion” in the jury room. Under these circumstances, the district court should have acceded to defense counsel’s request

— after a lengthy colloquy

— to ask the juror a further question regarding any improper behavior by the other members of the jury , just as the district court
did in United States v. Decoud , 456 F.3d 996, 1005 (9th Cir. 2006). Decoud held 

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JUN 16 2020 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS2 that the district court did not abuse its discretion in dismissing a juror in part because the court, in recalling the juror to answer an additional question regarding the other jurors’ behavior, ensured there was no reasonable possibility that the juror harbored a reason for discharge other than her stated con cerns. Id. at 1017. The majority is correct that district courts “may not intrude on the secrecy of the jury’s deliberations,” United States v. Christensen , 828 F.3d 763 , 811 (9th
Cir

. 2015) (quoting Symington , 195 F.3d at 1086), but mis interprets this instruction to suggest that district courts are generally discouraged from asking questions about the behavior of the other members of the jury when they already have grounds to dismiss a juror

. Although “necessarily constrained” by the ma ndate to avoid intruding into the jury’s deliberations, a court may “rightly instruct [] each juror questioned not to volunteer information beyond what the court asked and not to discuss the content of deliberations or any juror’s views on the merits.” Id.
The district court in Decoud had sufficient grounds to dismiss a juror based

on her religious views after an initial round of questioning

. T he juror had not indicated any pressure from other jurors , but the court still recalled the juror to ask
one furth er question , to eliminate the reasonable possibility that the request for
dismissal stemmed from the juror’s views of the merits. 456 F.3d at 1003

- 05,
1017. The court did not err in asking the additional question about any “improprieties by the other jurors , ” but rather “took care in inquiring into the3 circumstances that gave rise to the juror’s request for discharge” and “ma[de] sure that there was no reasonable possibility that the juror harbored some other reason for discharge, such as her vie ws on the merits of the case.” Id

. at 1017.
The court ’s adverse credibility finding cannot be sustain ed on the current
record. I t appears to stem from the jur or’s failure to inform the court , prior to the commencement of deliberations, of his concerns re garding the proximity of his
home to the location of one drug transaction. Yet the court ascertained that the juror was not in fact concerned about his safety. Had there been further inquiry, what was really bothering the juror could well have been expla ined. As the juror said, until he walked into the jury room, he did not fully appreciate the fact of being a juror, and he then felt pressured to agree with his peers. The question the
court should have asked is why he felt that pressure

. For these reaso ns, I would grant the appeal.