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 APPEALS
NOT FOR PUBLICATION

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

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 Honorable Ivan L.R. Lemelle, Senior 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 APPEALS
2

2015. We review a possible violation of the Sixth Amendment de novo, United 

States v. Myers, 930 F.3d 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 enhancement 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 district 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). Distinguishing

decisions reserved for the client from those which are the lawyer’s province, 

McCoy noted that trial management is generally controlled by counsel. Id. at 1508. 

As counsel’s trial management authority applies to scheduling matters, including

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 this 
3

court under the Barker framework, and in fact specifically disclaimed the 

applicability of the framework, we do not reach any such analysis.

2. Any error 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 Juror #6 after 

deliberations began because Juror No. 6 was discharged for good cause and there 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 deliberations 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, and “[w]e afford special deference to a trial court’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 district 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 Juror 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 disbelieve 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 that other jurors wanted to remove him because 

of his views on the merits, because the court 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 into 
5

deliberations, which we have held indicates that he was not 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 

deliberations 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 more 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 generally 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 properly applied a sentencing enhancement for reckless 

endangerment during flight. Macias fled the scene of the drug transaction where 
6

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. 19-10054

BERZON, Circuit Judge, dissenting:

I concur in Parts 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 

dismissal 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 about 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 

FILED

JUN 16 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

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 concerns. 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 misinterprets 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 mandate 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. The juror had not 

indicated any pressure from other jurors, but the court still recalled the juror to ask

one further 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 the 
3

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 views on the merits of the case.” Id. at 1017.

The court’s adverse credibility finding cannot be sustained on the current 

record. It appears to stem from the juror’s failure to inform the court, prior to the 

commencement of deliberations, of his concerns regarding 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 explained. 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 reasons, I would grant the appeal.