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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 18-15167
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EULALIO MARTINEZ,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 7:17-cr-00018-HL-TQL-1
____________________
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2 Opinion of the Court 18-15167
Before ROSENBAUM, LUCK, and ANDERSON, Circuit Judges.
LUCK, Circuit Judge:
Eulalio Martinez appeals his convictions for knowingly pos-
sessing methamphetamine with the intent to distribute it and ille-
gally reentering the United States. On appeal, Martinez argues that
the district court abused its discretion by dismissing a juror after
deliberations began. After careful review, and with the benefit of
oral argument, we affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In 2017, Martinez was indicted for possession with intent to
distribute more than fifty grams of methamphetamine, in violation
of 21 U.S.C. sections 841(a)(1) and (b)(1)(A)(viii), and illegal reentry
into the United States, in violation of 8 U.S.C. section 1326(a). He
pleaded not guilty, and the case went to trial.
About an hour into the jury’s deliberations, the district court
learned that a juror, C.B., was “in tears,” “having paroxysm[s] of
weeping,” and had told the courtroom deputy that she could not
“go on with the deliberations.” The district court discussed the sit-
uation with the parties. It noted that “counsel for both sides and
possibly [Martinez] himself would have the right to be present”
when it interviewed C.B. But the district court proposed speaking
to C.B. privately because, given her emotional state, interviewing
her “with a crowd present would be counterproductive.”
The parties agreed that the district court should interview
C.B. in chambers, but Martinez “ask[ed] that before [the district
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18-15167 Opinion of the Court 3
court] ma[de] any final decision . . . [it] come back and inform [the
parties] generally about the conversation so [they could] be heard
at that point.” The district court said it would do so. The district
court then brought C.B. into chambers: 1
THE COURT: Come in and have a seat Ms.
[C.B.], I’m [the judge] as I assume
you know. This is the court re-
porter and you know [the court-
room deputy]. Tell me what
your problem is.
THE JUROR: I can’t like—(emotionally upset)
THE COURT: Would you like some water?
Take a minute and compose
yourself.
THE JUROR: I can’t put someone else’s life in
my decision and I feel as though
[Martinez] wasn’t guilty and eve-
rybody is like—
THE COURT: Wait a minute. I can’t under-
stand what you’re saying. You’ve
got to compose yourself. Can
1
The government moved to supplement the record with the audio recording
of this conversation to “fully illustrate[]” C.B.’s emotional state. Because
C.B.’s emotional state is apparent from the transcript, the government’s mo-
tion is DENIED.
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4 Opinion of the Court 18-15167
you stop weeping[?] Where are
you from?
THE JUROR: Eatonton.
THE COURT: Eatonton?
THE JUROR: Yes.
THE COURT: What do you do up there?
THE JUROR: I work at [a bank] as the opera-
tions and tele-coordinator man-
ager.
THE COURT: Are you married?
THE JUROR: No.
THE COURT: You’re not married. No children?
THE JUROR: No.
THE COURT: Have you ever been to court be-
fore?
THE JUROR: No.
THE COURT: You’ve never been to the state
courthouse there in Eatonton?
THE JUROR: Only to vote.
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18-15167 Opinion of the Court 5
THE COURT: That’s good. I’m glad you vote.
Catch your breath. Has some-
thing frightened you?
THE JUROR: No. I just can’t be responsible. I
thought I could but I just can’t be
responsible for someone else’s
life. I feel like it’s— I have a say
so and I just can’t make that deci-
sion. I can’t about someone
else’s life. I thought I could, but
when we’re all around that table
and everyone—I just can’t.
THE COURT: Well, listen, you are able to make
decisions in the everyday affairs
of your life, are you not?
THE JUROR: Yes, sir.
THE COURT: You are not being called on to de-
cide what happens to [Martinez].
You are called on to make deci-
sions about the facts of this case
under the evidence that you’ve
heard during the trial.
You know, somebody has got to
do it and all citizens are obligated
to perform this kind of service.
But, you know, if he should be
found not guilty why that is not
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6 Opinion of the Court 18-15167
your fault as an individual, and if
he is found guilty that’s not your
fault as an individual.
If he is found guilty you are not
going to be called on to pass sen-
tence on him. I agree with you
that it may be an unpleasant pro-
cess but, you know, from time to
time all of us are called on to do
things we don’t want to do, and
I’m sure that is true for you as it
is for me.
Ultimately, I’m not going to look
you in the eye and say I’m going
to force you to do this, but at the
same time I am not going to
lightly release you from your jury
service. But you’ve got to tell
me—now you’ve calmed down a
little bit. Do you think you can
go on with this deliberation or
not?
THE JUROR: (Nodding head negatively).
THE COURT: You do not?
THE JUROR: No, sir.
THE COURT: Okay.
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18-15167 Opinion of the Court 7
The district court asked C.B. to remain in chambers and then
told the parties in open court:
[C.B. was] very upset. I have done what I could to
calm her down and to talk with her calmly and hope-
fully with some sense about her jury service. I have
explained to her that the decision of the jury, what-
ever it may be, is not her personal fault and that all of
us are called on from time to time to perform unpleas-
ant duties which may involve things which we find
personally repugnant. But at the end of our conver-
sation I’m convinced that she cannot go on with jury
service and that if she stays in the jury room we will,
at best, have a hung jury. So I propose to excuse her
and bring in the first alternate.
The government agreed with the district court’s proposal.
Martinez objected, “primarily” because “it ha[d] been ap-
proximately [an] hour since the jury went out” and “that[ wa]s just
too short of a time.” Martinez “ask[ed] the [district c]ourt to in-
struct [C.B.] to do her best.” He argued that, “with the passage of
time and generosity of the other jurors[,] she might find a comfort-
able way to participate.” The district court said that it “appreci-
ate[d] [Martinez’s] point of view” but “differ[ed] with it” and de-
cided to replace C.B. with an alternate. Neither party raised any
further objections.
The district court then brought in the remaining jurors (with
the alternate), informed them of C.B.’s excusal, and instructed
them to start deliberations anew. About an hour after the
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8 Opinion of the Court 18-15167
deliberations restarted, the jury returned a verdict convicting Mar-
tinez of both charges. The district court sentenced Martinez to 166
months’ imprisonment to be followed by five years of supervised
release. Martinez timely appealed.
STANDARD OF REVIEW
We review for abuse of discretion a district court’s decision
to remove a juror after deliberations have begun. United States v.
Brown,
996 F.3d 1171, 1182 (11th Cir. 2021) (en banc). “We will
reverse the district court only if we find that it discharged the juror
without factual support, or for a legally irrelevant reason.” United
States v. Register,
182 F.3d 820, 840 (11th Cir. 1999) (quotation
omitted). If the district court “determines as a matter of fact that
no substantial possibility exists that the pertinent juror is basing her
decision on the sufficiency of the evidence, we will review that
finding only for clear error.” United States v. Abbell,
271 F.3d 1286,
1303 (11th Cir. 2001). “A finding is ‘clearly erroneous’ when[,] alt-
hough there is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm conviction that a
mistake has been committed.” United States v. U.S. Gypsum Co.,
333 U.S. 364, 395 (1948).
The government contends that we should review most of
the issues on appeal only for plain error because Martinez did not
argue them to the district court. But we “need not resolve whether
plain error review applies here because, even under the lower
abuse-of-discretion standard, the district court did not abuse its
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18-15167 Opinion of the Court 9
discretion.” United States v. Moore,
22 F.4th 1258, 1271 n.13 (11th
Cir. 2022).
DISCUSSION
Martinez argues that the district court abused its discretion
in four ways: (1) the district court lacked a legally sufficient basis
in the record to remove a juror after deliberations had begun; (2)
the district court “did not make the appropriate findings or apply
the appropriate standard”; (3) the district court did not allow the
parties to participate meaningfully in the decision to dismiss C.B.;
and (4) the district court “resolved the issue based on an apparent
concern that the jury would deadlock.”
Under Federal Rule of Criminal Procedure 23(b)(3), a district
court may excuse a juror after deliberations have begun upon a
finding of “good cause.” 2 Fed. R. Crim. P. 23(b)(3). “Good cause”
exists, for example, when a juror “refuses to apply the law or to
follow the [district] court’s instructions.” See Abbell,
271 F.3d at
1302. “Because of the danger that a dissenting juror might be ex-
cused under the mistaken view that the juror is engaging in imper-
missible nullification, . . . a juror should be excused only when no
2
The rule was amended in 2002 to require “good cause,” rather than “just
cause,” but this amendment did not “change [the] substance” of the rule. Fed.
R. Crim. P. 23 advisory committee’s note to 2002 amendments. So pre-2002
cases analyzing “just cause” are equally applicable. See United States v.
Ginyard,
444 F.3d 648, 652–53 (D.C. Cir. 2006) (explaining that the shift from
“just cause” to “good cause” was “not intended to reflect a change in sub-
stance”).
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10 Opinion of the Court 18-15167
‘substantial possibility’ exists that she is basing her decision on the
sufficiency of the evidence.”
Id.
The District Court Had a Legally Sufficient Basis in the Record for
Its Decision
Martinez asserts that, under the appropriate standard, the
record does not support C.B.’s dismissal. The district court found
that C.B. “[could not] go on with jury service,” and could not de-
liberate, because of her emotional state. That finding is supported
by the record.
“It is well settled that good cause exists to dismiss a juror
when that juror refuses to apply the law or to follow the [district]
court’s instructions” because “[s]uch a juror abdicates [her] consti-
tutional responsibility” and “violates [her] solemn oath.” Brown,
996 F.3d at 1184 (quotations omitted). Here, C.B. couldn’t follow
the district court’s instructions to deliberate. She was emotionally
distraught—“not only weeping” but “having paroxysm[s] of weep-
ing”—and she repeatedly said that she couldn’t render any verdict
because she couldn’t “make that decision” and “be responsible.”
The district court explained to her that she was only “called on to
make decisions about the facts of th[e] case under the evidence that
[she] heard during the trial,” not to decide what would happen to
Martinez. But she still insisted that she couldn’t deliberate or ren-
der a verdict. After trying (and failing) to calm her down, the dis-
trict court asked her directly: “Do you think you can go on with
this deliberation or not?” She responded, “No.”
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18-15167 Opinion of the Court 11
On this record, we can’t say that the district court clearly
erred in finding that C.B. was too emotional to follow its instruc-
tions to deliberate. See United States v. Augustin,
661 F.3d 1105,
1132 (11th Cir. 2011) (affirming the dismissal of a juror who “be-
came upset and began crying” and said she was “really unwilling”
to deliberate with the other jurors because she was “making
[her]self very ill”); United States v. Oscar,
877 F.3d 1270, 1288 (11th
Cir. 2017) (affirming the dismissal of a juror who “was too emo-
tional to follow the law” because she “began crying when discuss-
ing the prospect of the defendants going to prison”); see also United
States v. Godwin,
765 F.3d 1306, 1317 (11th Cir. 2014) (noting that
“[a] distraught juror is unlikely to be an attentive one”).
Against this, Martinez argues that there was a tangible pos-
sibility that the district court dismissed C.B. based on the suffi-
ciency of the evidence because she believed Martinez was not
guilty. There are two problems with this argument.
First, while C.B. did say that she felt Martinez “wasn’t
guilty,” the record is clear that the district court couldn’t under-
stand C.B.’s comment. C.B. made the comment while she was
“weeping” uncontrollably, and the district court immediately re-
sponded: “Wait a minute. I can’t understand what you’re saying.
You’ve got to compose yourself. Can you stop weeping[?]” The
district court couldn’t have dismissed C.B. based on a comment it
couldn’t hear or understand.
Second, even if the district court had understood C.B.’s com-
ment, there was nothing in the record to suggest that C.B. based
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12 Opinion of the Court 18-15167
her decision on the sufficiency of the evidence. Although C.B. told
the district court that she felt Martinez “wasn’t guilty,” she never
suggested that this feeling was based on the evidence adduced at
trial. Instead, when the district court questioned C.B., she repeat-
edly explained that she couldn’t go on because she couldn’t “be re-
sponsible for someone else’s life.” That explanation—being unable
to handle the weight of the decision—has nothing to do with the
sufficiency of the evidence. As a result, we can’t say that the district
court, which is “uniquely situated to make the credibility determi-
nations that must be made whenever a juror’s motivations and in-
tentions are at issue,” made any clear error. See Godwin, 765 F.3d
at 1318 (quotations omitted).
The record was sufficient for the district court to find that
C.B. could not follow its instructions to deliberate and needed to
be dismissed.
The District Court Applied the Correct Standard and Made the
Appropriate Findings
Martinez contends that the district court didn’t “apply the
correct standard” and that “[t]he district court merely found that
the juror ‘was very upset’ and that leaving her on the jury might
lead to a hung jury.” We disagree.
First, although the district court did not use the magic words
“no substantial possibility,” it didn’t have to. See Oscar, 877 F.3d
at 1288 n.16 (“A district court is not required to use the magic
words ‘substantial possibility’ or ‘beyond a reasonable doubt’ when
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18-15167 Opinion of the Court 13
dismissing a juror.”). The district court said that it was “convinced”
that C.B. could not “go on with jury service.” The “clear import of
the district court’s ruling was that there was no substantial possi-
bility” that C.B. could participate in deliberations and render a ver-
dict. Id. That was sufficient.
Second, the district court did not “merely” find that C.B.
“was very upset.” The district court found that C.B. was so dis-
traught that she could not fulfill her duties as a juror. C.B. was clear
that she could not “be responsible” or “make that decision”; she
was “not only weeping” but “having paroxysm[s] of weeping.”
The district court, unable to calm her down, found that her emo-
tional state prevented her from completing her jury service. The
district court’s finding was not clearly erroneous. See Godwin, 765
F.3d at 1318 (explaining that “[i]t is seldom easy to establish clear
error” and is “especially difficult to do so” where “the district court
was on the scene” and “viewed the juror[] as [she] described the
problem”).
Martinez asserts that the district court should have investi-
gated further by asking more questions of C.B. and questioning the
other jurors. But “[a]ny challenge to the district court’s investiga-
tion [of a juror] must be viewed in the context of the broad discre-
tion afforded a trial judge confronted with” the issue. Augustin,
661 F.3d at 1129 (quotation omitted). This “discretion extends
even to the initial decision of whether to interrogate the jurors.”
Id. (quotation omitted). And we have “caution[ed] district courts
to be careful about invading the secrecy of the jury’s deliberations
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14 Opinion of the Court 18-15167
and to err on the side of too little inquiry as opposed to too much.”
Abbell,
271 F.3d at 1304 n.20; accord Brown, 996 F.3d at 1186 (“Of
course, we do not mean to suggest that a district [court] should
ordinarily interview several jurors or conduct a lengthy investiga-
tion of alleged juror misconduct.”). Because the district court ob-
served C.B. for itself and was “convinced” that she could not “go
on with jury service,” it was not an abuse of discretion to dismiss
her without further investigation. See United States v. Geffrard,
87
F.3d 448, 452 (11th Cir. 1996) (affirming the dismissal of a juror,
despite the district court’s reliance on only a letter from the juror
and its refusal to interview any of the other jurors, because the ju-
ror’s “strong statements in the letter . . . [made] it a certainty that
[the] juror could not reach a verdict following the [district court]’s
instructions as applied to the facts”).
The Parties Meaningfully Participated in the Decision
Martinez argues that the district court “did not permit mean-
ingful participation of the parties before deciding to dismiss the ju-
ror” because it “did not summarize to the parties what [C.B.] said.”
Martinez is mistaken. The district court told the parties that they
“would have the right to be present at [C.B.’s] interview,” but Mar-
tinez and the government agreed it would be best for the district
court to interview her alone. Martinez asked only that the district
court “come back and inform [the parties] generally about the con-
versation.” And that is what the district court did.
The district court accurately described what happened in
chambers: C.B. was “very upset.” The district court did “what [it]
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18-15167 Opinion of the Court 15
could to calm her down” and talked with her “calmly and hopefully
with some sense about her jury service.” The district court “ex-
plained to her that the decision of the jury” would not be “her per-
sonal fault.” “[A]ll of us,” the district court reminded her, “are
called on from time to time to perform unpleasant duties which
may involve things which we find personally repugnant.” But,
even after all of that, the district court was “convinced” that C.B.
could not “go on with jury service.” Martinez didn’t ask for any-
thing more specific.
Martinez now contends that the district court should have
told the parties more about what C.B. said. He relies on Augustin,
pointing out that “there, the district court did not dismiss the juror
until after it had disclosed to the parties what she said,” “gave them
full access to the notes,” and “consulted with the parties about
what to do.” But in Augustin, the parties had “full access” because,
unlike here, the juror was questioned in open court. 661 F.3d at
1131. Here, Martinez agreed that it was best for the district court
to question C.B. privately and then to relay “generally” what “the
conversation” was about. The district court did so and, like the
district court in Augustin, then consulted the parties on what to do.
The district court did not, as Martinez says, prevent “mean-
ingful participation of the parties.” In line with Augustin, the dis-
trict court kept the parties in the loop, consulted them as the situa-
tion with C.B. developed, and followed the investigative procedure
they agreed to. See id. at 1131–34. Thus, the district court did not
abuse its discretion.
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16 Opinion of the Court 18-15167
The District Court Did Not Dismiss C.B. to Break a Deadlock
Finally, Martinez argues that the district court erred when it
expressed “concern[] that [C.B.] would cause a hung jury” because
a district court “cannot replace a juror for the purpose of achieving
unanimity.” We agree that a district court cannot dismiss a juror
simply to break a deadlock. See United States v. Thomas,
116 F.3d
606, 624 (2d Cir. 1997) (“[A] district court may under no circum-
stances remove a juror in an effort to break a deadlock.”). But
that’s not what happened here.
The district court said that, “if [C.B.] stay[ed] in the jury
room,” there would, “at best,” be “a hung jury.” That is because
the district court was “convinced” that C.B. could not “go on with
jury service”—i.e., deliberate and render a verdict (any verdict)—
not because the rest of the jury had decided one way and she had
decided another based on the sufficiency of the evidence. The dis-
trict court explained that C.B. refused to render a verdict and that
her emotional state made her unable to deliberate—not that she
was a holdout juror.
Martinez cites United States v. Hernandez,
862 F.2d 17 (2d
Cir. 1988), but that case does not help him. In Hernandez, the dis-
trict court faced multiple issues with a juror, but decided to “wait
and see what [it was] going to do if there [was] a hung jury.”
Id. at
21 (alteration adopted). There was a hung jury, and then the dis-
trict court dismissed the juror.
Id. at 22. The Second Circuit re-
versed because the district court dismissed the juror “[o]nly when
the jury deadlocked.”
Id. at 23. Here, the district court did not take
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18-15167 Opinion of the Court 17
this “wait and see” approach. It removed C.B. right after finding
that she could not follow its instructions to deliberate. That was
not an abuse of discretion.
CONCLUSION
Because the district court didn’t abuse its discretion in dis-
missing C.B., we affirm Martinez’s convictions.
AFFIRMED.
