United States v. Corrine Brown

Case: 17-15470 Date Filed: 01/09/2020 Page: 1 of 116

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 17-15470
________________________

D.C. Docket No. 3:16-cr-00093-TJC-JRK-1

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

CORRINE BROWN,

Defendant - Appellant.

________________________

Appeal from the United States District Court
for the Middle District of Florida
________________________

(January 9, 2020)

Before WILLIAM PRYOR and ROSENBAUM, Circuit Judges, and CONWAY,∗
District Judge.

∗
Honorable Anne C. Conway, District Judge for the United States District Court for the
Middle District of Florida, sitting by designation.
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ROSENBAUM, Circuit Judge:

If the right to a jury trial means anything, it means a right to a verdict based

on the evidence. Indeed, the entirety of our procedural mechanisms is geared to

achieve this result: we have trials so we can ensure all jurors consider the same

universe of evidence; we have an entire body of rules—the Federal Rules of

Evidence—devoted to controlling the information on which jurors can rely in

reaching their decision; and we expressly instruct the jurors that they must determine

their verdict based on the evidence. Then, if a defendant loses at trial, on appeal, we

review the record to be certain that sufficient evidence supports the verdict.

We do these things to try to ensure that only those proven guilty based on

admissible evidence will be convicted and to try to prevent convictions that arise

from prejudice or even ostensibly noble reasons—such as a juror’s belief that God

has told him to convict, irrespective of the evidence. The consistent application of

these practices underpins the public’s faith in the jury system and delivers due

process of law, an ideal in which our system of justice is grounded.

So we must steadfastly insist that a deliberating juror who is incapable of

reaching a verdict based on the evidence be dismissed, regardless of whether that

juror intends to convict or acquit a defendant. If we do not, we guarantee that, under

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at least some circumstances, a juror who is unable to arrive at a verdict rooted in the

evidence will nonetheless be allowed to convict a defendant. That is unacceptable.

Here, the district court became aware that during deliberations, Juror 13 in

Defendant-Appellant Corrine Brown’s trial made remarks suggesting he might not

base his verdict on the evidence adduced at trial. Specifically, Juror 13 informed the

other jurors at the outset of deliberations that “[t]he Holy Spirit told [him]” that

Brown was not guilty on all counts.

The district court questioned Juror 13 for a while, in the presence of the

parties, to ascertain whether Juror 13 meant that he had prayed to the Holy Spirit for

guidance and wisdom in reaching a verdict based on the evidence—which would not

run afoul of the court’s instructions to return a verdict based on the evidence—or

whether he meant instead that he believed the Holy Spirit had “told” him to return a

certain verdict irrespective of what the evidence showed—which would violate the

court’s instructions. Based on Juror 13’s responses and demeanor, the district court

concluded that Juror 13 was not capable of rendering a verdict rooted in the evidence

presented at trial but that, despite his best intentions, Juror 13 would instead arrive

at a verdict based on his perceived divine revelation, uninformed by the actual

evidence. For this reason, the district court dismissed Juror 13 from the jury.

We find no clear error in the district court’s factual findings. And for that

reason, the district court certainly did not abuse its discretion in dismissing Juror 13

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from the jury. To hold otherwise would undermine our system of justice by allowing

jurors to return verdicts based not on the evidence or law, but instead on a juror’s

perceived divine revelation, irrespective of the evidence. Though here, the juror’s

perceived divine revelation might have worked in the criminal defendant’s favor had

the district court not learned of it mid-deliberations, a contrary holding would allow

criminal defendants to be convicted based on a divine revelation divorced from the

evidence, rather than the evidence presented at trial—a troubling result, to say the

least. And regardless of whether it works in favor of or against the defendant, a rule

that would allow a juror to base his verdict on something other than the evidence

would be antithetical to the rule of law and is contradicted by decades of precedent.

Brown also raises a challenge to the forfeiture order the district court entered.

We find no error there, either. We therefore affirm Brown’s convictions.

I.

A.

A federal grand jury issued a 24-count indictment charging Brown with one

count of conspiracy to commit mail and wire fraud (18 U.S.C. § 1349), sixteen

counts of mail and wire fraud (18 U.S.C. §§ 1341, 1342, 1343), one count of theft

of government funds (18 U.S.C. §§ 641, 642), two counts of engaging in a scheme

to conceal material facts (18 U.S.C. § 1001(a)(1)), one count of engaging in a corrupt

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endeavor to obstruct the administration of the Internal Revenue laws (26 U.S.C. §

7212(a)), and three counts of filing a false tax return (26 U.S.C. § 7206(1)).

The charges related to One Door for Education—Amy Anderson Scholarship

Fund (“One Door for Education”), an organization that purported to be a charity that

raised funds for, “among other things, scholarship assistance for disadvantaged

students and the purchase of computers to be donated to schools.” According to the

indictment, Brown and her alleged co-conspirators “used Brown’s official position

as a Member of Congress to solicit contributions to One Door for Education and to

induce individuals and entities to make donations” to that organization for the stated

charitable purposes.

But upon receipt of the contributions, the indictment alleged, Brown and her

co-conspirators distributed a total of only $1,200 for scholarships from the more than

$800,000 collected for that stated purpose. The indictment further asserted that

Brown and her co-conspirators used the “vast majority” of the remaining monies

“for their own personal and professional benefit.” In particular, the indictment

charged that they used the funds to pay for “a variety of personal expenses” such as

“luxury vacations,” and “to pay for events hosted by Brown or held in [her] honor,”

including spending the monies for the use of luxury boxes at sporting and concert

events.

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Brown proceeded to trial on the charges. During jury selection, all prospective

jurors affirmed that they had no “political, religious, or moral beliefs that would

preclude [them] from serving as a fair, impartial juror” in the case and that they had

no “religious or moral beliefs” that would preclude them from “sitting in judgment

of another person.” Then the selected jurors swore to “render a true verdict,

according to the law, evidence, and instructions of this court, so help [them] God.”

The court elaborated on that promise, explaining that the jurors’ job was to

“decide this case based solely on the evidence [they] hear[d] in this courtroom.” The

court then repeated its instruction twice more: “If you didn’t get it in this courtroom,

you shouldn’t have it. If you didn’t get it in this courtroom, you shouldn’t have it.”

In fact, the court further emphasized that “our whole system depends on the fact that

the case is decided in this courtroom on the evidence in this courtroom and nothing

else,” and that “every single one of [the jurors] has that responsibility to make sure

that that’s what happens.”

During the trial, the parties presented 371 exhibits and testimony from 41

witnesses. On May 8, 2017, after the eight-day trial, the court instructed the jury on

the law. It told the jury that its “decision must be based only on the evidence

presented during the trial” and that it “must not be influenced in any way either by

sympathy for or prejudice against the defendant or the government.” And, the court

said, the jury “must follow the law” as the court explained it, “even if [the jurors]

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d[id] not agree with the law,” and “must follow all of [the court’s] instructions as a

whole.” The court explained that the government’s burden to prove the defendant’s

guilt beyond a reasonable doubt required “real doubt, based on [the jury’s] reason

and common sense after [ ] carefully and impartially consider[ing] all the evidence

in the case.” Then it emphasized that the jury “must consider only the evidence that

[the court] ha[d] admitted in the case.”

After instructing the jury on the elements of the charged offenses, the court

told the jurors that they were the “judges of the facts” and that their “only interest

[was] to seek the truth from the evidence in the case.” Before the jury started

deliberations, the court identified the alternates and ordered them to stay in the

courthouse and to continue to not discuss the case. The jury then began deliberating.

B.

It wasn’t too long before trouble began to brew. In the evening of May 9,

Juror 8 (who was not the foreperson) called the courtroom deputy and reported that

she and other jurors had “concerns” about Juror 13. In particular, Juror 8 conveyed

that from the outset of deliberations, Juror 13 had been speaking about “Higher

Beings” in connection with Brown’s name. The courtroom deputy immediately

informed Juror 8 that she could not discuss the matter with her but advised Juror 8

that she would report the matter to the district judge, which she did. Once the district

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judge learned of the problem, he communicated with counsel about the situation that

evening (May 9).

First thing the next morning (May 10), the court convened a hearing with

counsel and Brown on the matter, where it stated for the record what had transpired

the evening before. At the hearing, the district court stated, “[I]t is difficult to tell

how serious [the alleged problem] is. It—you know, it could well just be part of the

natural frustration or dialogue or tensions that go on in any jury deliberations.” For

this reason, when the government asked the court to interview Juror 8, the district

court responded by asking, “[I]s there something less than doing that, such as just

readvising the jury on their duties and responsibilities and having them resume their

deliberations that would be sufficient?”

But both parties agreed that “it would [not] be sufficient, given the

circumstances, just to bring the jury in and to remind them of their obligations.”

Defense counsel remarked, “[T]here may not be a problem necessarily with [Juror

13] . . . . There could be an issue with [Juror 8] . . . , if she was discussing this

perhaps on the way in or the way out.”

The district court acknowledged defense counsel’s point that “[i]t could be the

first juror that’s a problem.” Then the court “reluctantly” agreed to inquire of Juror

8.

Juror 8 entered the courtroom, and the district judge instructed her,

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Before I ask you any questions or talk to you, I want to
make sure that you know that I am not asking you to, nor
should you, state or reveal in anything you say your own
opinions or positions about any of the deliberations that
you’ve been having or any of the issues in this case, nor
should you disclose or discuss the opinions of any of the
other jurors about any of the deliberations that have gone
on. So I want to be clear about that.
The court next asked the juror to share her concerns. Juror 8 related that she

had memorialized her concerns in a letter, which the court copied for the parties.

The letter read,

Your honor
With all due respect, I’m a little concerned about a
statement made by Juror #13 when we began deliberation.
He said “A Higher Being told me Corrine Brown was Not
Guilty on all charges”. He later went on to say he “trusted
the Holy Ghost”. We all asked that he base his verdict on
the evidence provided, the testimony of the witnesses and
the laws of the United States court. Other members of the
Jury share my concern.

Thank You,
Juror #8

After the court and the parties learned of the contents of the letter, the court

asked Juror 8 some follow-up questions. In response, Juror 8 said that Juror 13 had

made the statement about the “Higher Being” when the jury “first went into

deliberation” and that he had commented about the “Holy Ghost” “shortly after,

maybe within a few hours after.” Upon further questioning, Juror 8 reported that

Juror 13 had not made any additional statements to the same effect, that it appeared

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the juror had been deliberating, and that nothing about the situation was interfering

with her own ability to deliberate in compliance with court’s instructions.

Nevertheless, Juror 8 expressed concern that Juror 13’s beliefs about a “Higher

Being” and the “Holy Ghost” were “going to interfere in his ability to [deliberate in

the way that the court has directed].” Juror 8 also advised that “[s]ome of the jurors

are concerned that that’s affecting his—his decision.”

Then, in response to questions from defense counsel, Juror 8 explained that

nobody had asked her to come forward with the information, that she did not think

the other jurors were even aware that she had come forward, and that she learned of

the other jurors’ concerns about the statements during the deliberations, in Juror 13’s

presence. The court thanked Juror 8 and instructed her to “keep this discussion to

[her]self.” Then the juror left the courtroom.

The government then argued that the court should question the foreperson.

Defense counsel disagreed, asserting that no further steps were necessary.

After hearing the parties’ arguments, the court noted that “people pray for

guidance and so forth,” and that doing so is permissible and “to be respected.”

Nevertheless, it worried, “[I]f this juror is, in effect, raising some religious view that

would prevent him from ever determining that a defendant was guilty on charges or

that Ms. Brown was guilty on charges, that is problematic.” Putting it in starker

terms, the district court wondered aloud what would have happened if Juror 13 had

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instead said that he “trusted in the Holy Ghost to find Ms. Brown guilty of all

charges.”

Defense counsel then suggested that “if [Juror 13] can come out and satisfy

the court that he’s willing to follow [its] instructions on the law,” the court should

accept that assurance. The district court responded, “Well, I am certainly open to

that possibility[,] . . . but I think I need to ask him.”

So the court decided to question Juror 13. Juror 13 entered the courtroom and

the following colloquy ensued:

Court: Do you remember back when you were selected for the
jury that one of the questions that [the judge] asked you
was whether you had any political, religious, or moral
beliefs that would preclude you from serving as a fair
and impartial juror in this case? Do you remember that
question?
Juror: I do.

Court: Okay. And I assume at that time that you answered that
question no, is that right, that you did not—
Juror: That is correct.

Court: Okay. And is that—is that still the case? Are you
having any difficulties with any religious or moral
beliefs that are, at this point, bearing on or interfering
with your ability to decide the case on the facts
presented and on the law as I gave it to you in the
instructions?
Juror: No, [S]ir.

Court: Okay. Do you consider yourself to have been
deliberating with your other jurors according to the law

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and the instructions that the court gave to you before
you went in to deliberate?

Juror: We have been going over all the individual numbers,
as far as—

Court: Yeah, I don’t want to hear anything about the
deliberations.

Juror: Yes, [S]ir.

Court: But I’m just asking you: Are you—do you consider
yourself to be following the court’s instructions in
terms of the law and how you go about what you’re
doing, free from any influence of religion or political
or moral beliefs? Are you able to do that? Have you
been doing that?
Juror: I’ve been following—I’ve been following and listening
to what has been presented and making a determination
from that, as to what I think and believe.

Court: Okay. That’s fine. So let me get a little more specific
with you. Have you expressed to any of your fellow
jurors any religious sentiment, to the effect that a
higher being is telling you how—is guiding you on
these—on these decisions, or that you are trusting in
your religion to—to base your decisions on? Have you
made any—can you think of any kind of statements that
you may have made to any of your fellow jurors along
those lines?

Juror: I did, yes.
Court: Okay. Can you tell me, as best you can, what you said?

Juror: Absolutely. I told them that in all of this, in listening
to all the information, taking it all down, I listen for the
truth, and I know the truth when the truth is spoken. So
I expressed that to them, and how I came to that
conclusion.

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Court: Okay. And in doing so, have you invoked a higher
power or a higher being? I mean, have you used those
terms to them in expressing yourself?
Juror: Absolutely. I told—I told them that—that I prayed
about this, I have looked at the information, and that I
received information as to what I was told to do in
relation to what I heard here today—or this past two
weeks.
Court: Sure. When you say you received information, from
what source? I mean, are you saying you received
information from—
Juror: My Father in Heaven.
Court: Okay. Is it a fair statement—I don’t want to put words
in your mouth. But are you saying that you have
prayed about this and that you have received guidance
from the Father in Heaven about how you should
proceed?

Juror: Since we’ve been here, [S]ir.
Court: Do you view that in any way—as you know, when I
instructed you, I, as I do for—for all juries—you had
told [the judge] that you had no religious or any—you
did not have any religious or moral beliefs that would
preclude you from serving as a fair and impartial juror,
nor did you have any religious or moral beliefs that
would preclude you from sitting in judgment of another
person. So you told [the judge] that. And then you
also—of course, you heard my instruction, where you
have to base your decision only on the evidence
presented during the trial and follow the law as I
explained it. Do you feel that you have been doing
that?

Juror: Yes, [S]ir, I do.
Court: Do you feel that there is any inconsistency in the prayer
that you’ve had or the guidance you’re receiving and
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your duty to base your decision on the evidence and the
law?

Juror: You said a few—you said a few things. Repeat, please.

Court: Do you feel that there’s any religious tension, or is your
religion and your obvious sincere religious beliefs—do
you believe it at all to be interfering or impeding your
ability to base your decision solely on the evidence in
the case and following the law that I’ve explained to
you?

Juror: No, [S]ir. I followed all the things that you presented.
My religious beliefs are going by the testimonies of
people given here, which I believe that’s what we’re
supposed to do, and then render a decision on those
testimonies, and the evidence presented in the room.
The court instructed Juror 13 to wait outside the courtroom while it conferred

with counsel for both sides. The government asserted that Juror 13 had admitted he

was “guided by what he believes a deity told him to do, and is apparently

implementing that, and not by the court’s instructions on the law.” For this reason,

the government argued, the court should release him and seat an alternate juror in

his place. Although defense counsel disagreed, emphasizing that Juror 13 had

assured the court he was following the court’s instructions and did not say that he

was disregarding the court’s instructions, he nonetheless conceded that he could

“understand the concern that the court would have here with the statement about

receiving guidance.”

After hearing out counsel, the court proposed asking Juror 13 directly, “Did

you ever make the statement that a higher being told me that Corrine Brown was not
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guilty on all charges?” Neither party objected. So the court brought Juror 13 back

into the courtroom, and the following colloquy ensued:

Court: If you could just have a seat again, [S]ir. And I
appreciate your patience with us. And I—I want you
to understand I am not criticizing you or saying you did
anything wrong. We’re just trying to figure some
things out here. So what I want to ask you is a fairly
direct question:

Did you ever say to your fellow jurors or to a fellow
juror during your—during the time that y’all worked
together, when the 12 started, something to this effect,
A higher being told me that Corrine Brown was not
guilty on all charges? Did you say something like that?
Did you say that or something like that to any of your
fellow jurors?

Juror: When we were giving why we were—insight, as far as
not guilty or whatever for the first charge, yes.
Court: Did you say the words, A higher being told me that
Corrine Brown was not guilty on all charges?

Juror: No. I said the Holy Spirit told me that.
Court: Okay. And you—and I don’t want to get into your
deliberations. But at what point in the deliberations
was that? Was it at the beginning? Was it early in the
deliberations? When was it?
Juror: I mentioned it in the very beginning when we were on
the first charge.

The court sent Juror 13 back to the jury room.

C.

Based on this exchange, the government asked the court to excuse Juror 13

and seat the first alternate juror. Defense counsel disagreed. He argued the court
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should interpret Juror 13’s statement as that of a person of deep faith “saying that

something he believed beforehand had been reaffirmed by the evidence that he saw.”

In resolving the issue, the court noted that “a district court should excuse a

juror during deliberations only when no substantial possibility exists that she’s

basing her decision on the sufficiency of the evidence.” Turning to the facts, the

court recognized that unlike in other cases, Juror 13 had not announced that he was

unwilling or unable to follow the court’s instructions. Rather, the juror assured the

court that he believed he was applying the court’s instructions properly. And, the

court explained, “the fact that somebody prays for guidance or is seeking guidance

from whatever religious tradition they come from is perfectly appropriate and not a

grounds to dismiss a juror, necessarily.” Nevertheless, the court announced that it

would excuse Juror Number 13 based on the following reasoning:

In this case, Juror N[umber] 13, very earnest, very sincere,
I’m sure believes that he is trying to follow the court’s
instructions, I’m sure believes that he is rendering proper
jury service, but, upon inquiry and observing Juror
N[umber] 13, there is no question that he has made
statements that he is, quote, receiving information from a
higher authority as part of his deliberative process, and in
response to the court’s direct inquiry as to whether he had
said to other jurors, quote, A higher being told me Corrine
Brown was not guilty on all charges, closed quote, Juror
N[umber] 13 said that he—what he actually said was that
the Holy Ghost or the Holy Spirit told me Corrine Brown
was not guilty on all charges.
And a juror who makes that statement to other jurors and
introduces that concept into the deliberations, especially—

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anytime, but this happened to be very early in the
deliberations, is a juror that is injecting religious beliefs
that are inconsistent with the instructions of the court, that
this case be decided solely on the law as the court gave it
to the jury and the evidence in the case.
Because, by definition, it’s not that the person is praying
for guidance so that the person can be enlightened, it’s that
the higher being—or the Holy Spirit is directing or telling
the person what disposition of the charges should be made.

And based upon my reading of the case law in other cases
where religious beliefs have caused a juror to be struck,
this statement by the juror, which he forthrightly admitted
to, and which was accurately, apparently, recounted by
Juror N[umber] 8, who brought this to our attention, is a
disqualifying statement.
And—and it appears to the court, looking and judging the
credibility of Juror N[umber] 13, that he was hesitant at
first to explain to me how his religious views have come
to the fore during deliberations.

But as we progressed and as he told me he received
information from a higher source, and then as he later
confirmed the actual statement that the Holy Spirit told
him that Ms. Brown was not guilty on all charges, that—
that he has expressed views and holds views that I think
are inconsistent with his sworn duty as a juror in this case,
because he’s not able to deliberate in a way that follows
the law and instructions that the court gave to him.
I want to be very clear that I am drawing a distinction
between someone who’s on a jury who is religious and
who is praying for guidance or seeking inspiration, or
whatever mode that person uses to try to come to a proper
decision, from this situation, where the juror is actually
saying that an outside force, that is, a higher being, a Holy
Spirit, told him that Ms. Brown was not guilty on those
charges. And I think that’s just an expression that’s a

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bridge to[o] far, consistent with jury service as we know
it.

I recognize that whenever you’re in the area of religious
belief, and—and people who have different ways of
expressing their religious beliefs, that you’re in territory
that’s difficult to navigate.

But in my view, the record is clear, and that not only did
Juror N[umber] 13 make this statement, but it appears that
he continues to believe that he is being told by a higher
power how he ought to proceed in these deliberations, and
he has shared that with the other jurors, which, again, is
essentially a violation, not a—not a willful violation by
Juror N[umber] 13, but a violation of the court’s
instructions to base the decision only on the law and the
facts that were adduced at trial, and in accordance with the
court’s instructions.

Ultimately, the court found “beyond a reasonable doubt” that there was “no

substantial possibility” that Juror 13 would be “able to base his decision only on the

evidence and the law as the court gave it to him in the instructions” and that Juror

13 was instead “using external forces to bring to bear on his decision-making in a

way that’s inconsistent with his jury service and his oath.” In light of this conclusion,

the court excused Juror 13 for good cause.

Then, because Juror 13 had been removed from the jury, the parties agreed

that the court should seat the first alternate in his place. After the first alternate

joined the jury, the court instructed the jury to start deliberations anew, and the jurors

assured the court that they would do so.

D.

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Two jury notes and eleven hours of new deliberations later, the jury found

Brown not guilty on four of the fraud counts but guilty on all remaining counts.

Brown moved for a new trial. She argued the court wrongly dismissed Juror

13 because there was a “substantial possibility” that the “holy spirit was actually the

juror’s own mind or spirit telling him that one or more witnesses had not testified

truthfully.” The government opposed Brown’s motion.

In a written order, the district court denied Brown’s motion. Though the court

once again acknowledged that “a juror is fully entitled to his religious beliefs and

may espouse them,” the court found that in this case, Juror 13’s “religious beliefs

compelled him to disregard [the] instructions [he had received from the court on the

law and how to evaluate the evidence] and instead follow direction from the ‘Holy

Spirit’ to find the defendant ‘not guilty on all charges.’” Indeed, the court

determined that Juror 13 “sincerely believed he had received instructions from an

outside source before deliberations began about what his verdict should be . . . .”

The court also specifically found that Juror 13’s “statement that he was following

[the court’s] instructions did not convince [the court] that he was able to do so.”

Juror 13’s seeming “unaware[ness] of the inconsistency” between following the

court’s instructions and taking supposed direction from the Holy Spirit “reinforc[ed]

[the court’s] belief that he would be unable to follow the Court’s instructions even

if [ ] again directed [ ] to do so.”

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In addressing the defendant’s claim that Juror 13’s statement was simply his

evaluation of the sufficiency of the evidence, the district court disagreed, calling this

assessment “a mischaracterization of the situation[,]” since Juror 13 said “he had

expressed a conclusion from the beginning of the deliberations and without

discussion with his fellow jurors, in violation of the Court’s instructions.” Plus, the

court continued, Juror 13’s statements “necessarily had to impact the overall

deliberations because Juror [ ] 13 was telling his fellow jurors that he was basing his

verdict on direction apart from those in the Court’s instructions.” For all these

reasons, the court concluded “beyond a reasonable doubt that there was no

substantial possibility that [Juror 13] could base his decision on the sufficiency of

the evidence and the Court’s instructions.”

Finally, the court emphasized that its decision did not suggest that persons of

religious faith were unsuitable for jury service, but only that all jurors must “render

a verdict based on the evidence presented in court.”

E.

The court sentenced Brown to serve an aggregate sentence of 60 months. It

also entered a forfeiture and restitution order. By that order, the court found that

Brown had “obtained $664,292.39 in proceeds from the offenses of conviction” and

that she was “liable individually” for that amount. Brown did not respond to the

government’s motion for forfeiture and restitution or object to the court’s order.

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II.

In this appeal, Brown first argues that the district court’s decision to dismiss

Juror 13 was reversible error. Her contentions fall into four categories: (1) the

district court lacked a sufficient basis to inquire into Juror 13’s statements in the first

place; (2) the district court abused its discretion when, after questioning Juror 13, it

found good cause to excuse him; (3) Juror 13’s responses during the court’s inquiry

violated Rule 606(b) of the Federal Rules of Evidence; and (4) the district court’s

dismissal of Juror 13 constituted plain error because it violated the Religious

Freedom Restoration Act (“RFRA”) and Brown’s First Amendment right to freedom

of religion and her Sixth Amendment right to a unanimous jury verdict. After careful

consideration, we are not persuaded by any of these arguments.

We begin with a review of the governing standards. Federal Rule of Criminal

Procedure 23(b)(3) allows the district court, on a finding of “good cause,” to excuse

a juror after deliberations have begun.1 “Good cause” exists only when there is “no

substantial possibility” that a juror “is basing her decision on the sufficiency of the

evidence.” United States v. Abbell, 271 F.3d 1286, 1303 (11th Cir. 2001). We have

explained that in this context, “substantial possibility” means “a tangible possibility,

1
In 2002, Rule 23 was amended to replace the term “just cause” with “the more familiar
term ‘good cause,’ that appears in other rules.” Fed. R. Crim. P. 23(b) advisory committee’s note
to 2002 amendment. The rule made no change in substance. See id. Because of the change in
2002, cases issued before that time refer to “just cause.” For convenience and to avoid confusion,
however, this opinion uses the term “good cause,” when discussing those cases.
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not just a speculative hope,” which “basically” amounts to “a ‘beyond reasonable

doubt’ standard.” Id. at 1302, 1302 n.14.

The “good cause” standard accounts for two competing concerns: (1) it

vindicates the defendant’s right to a unanimous verdict of guilt by ensuring that a

court does not dismiss a juror during deliberations because that juror “‘harbors

[doubts] about the sufficiency of the government’s evidence[,]’” United States v.

Oscar, 877 F.3d 1270, 1287 (11th Cir. 2017) (quoting United States v. Brown, 823

F.2d 591, 596 (D.C. Cir. 1987) (alteration added)); and (2) it “protect[s] each party’s

right to receive a verdict rendered by a jury that follows the law[,]” United States v.

Kemp, 500 F.3d 257, 304 (3d Cir. 2007); Oscar, 877 F.3d at 1287.

We review for abuse of discretion a district court’s decision to remove a juror

during deliberations. Abbell, 271 F.3d at 1302. And “we will reverse the district

court only if we find that it discharged the juror without factual support, or for a

legally irrelevant reason.” Id. (cleaned up).

With these standards in mind, we evaluate in turn each of Brown’s arguments

about Juror 13.

A.

Before we can consider the merits of the district court’s decision to remove

Juror 13, we must first address Brown’s argument that the district court should not

have questioned Juror 13 after hearing from Juror 8.

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We have held that a district court enjoys “broad discretion” in whether and

how it chooses to investigate claims of potential “good cause” to remove a juror.

Abbell, 271 F.3d at 1304 n.20 (citing United States v. Harris, 908 F.2d 728, 733

(11th Cir. 1990)). When it comes to a district court’s choices concerning the

investigation of alleged juror misconduct relating to “statements made by the jurors

themselves,” we have described that broad discretion as reaching its “zenith.”

United States v. Bradley, 644 F.3d 1213, 1277 (11th Cir. 2011). “The broader the

discretion, the greater the range of choice and the less room for reversal.” Id. at 1280

(citation and quotation marks omitted). Nevertheless, we have “caution[ed] district

courts to be careful about invading the secrecy of the jury’s deliberations and to err

on the side of too little inquiry as opposed to too much.” Abbell, 271 F.3d at 1304

n.20.

Here, we find no abuse of discretion in the district court’s decision to question

Juror 13. Juror 8 reported that Juror 13 had stated at the outset of deliberations that

“[a] Higher Being told me Corrine Brown was Not Guilty on all charges.” Juror 8

further recounted that Juror 13 later said in relation to this remark that he “trusted

the Holy Ghost.” Though Juror 8 testified that Juror 13 appeared to be deliberating,

she nonetheless was still “concerned” that Juror 13’s views that a “Higher Being” or

the “Holy Ghost” had “told” him of Brown’s innocence would “interfere in [Juror

13’s] ability to” deliberate in the way that the court had directed in the instructions.

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The district court reasonably could have viewed this testimony as complaining that

Juror 13, while going through the motions of deliberating, was not actually

deliberating in the sense of evaluating the evidence before the jury but was instead

relying for his position on what he believed he had been “told” by a “Higher Being”

or the “Holy Ghost.”

Juror 8 also shared her observation that other jurors had likewise expressed

“concern” during deliberations that Juror 13’s remarks that a “Higher Being” or the

“Holy Ghost” had “told” Juror 13 that Brown was not guilty on all counts was

affecting Juror 13’s decision. The court reasonably could have understood those

concerns as further supporting the conclusion that Juror 13 appeared to the other

jurors to be relying for his verdict on what he believed a “Higher Being” or the “Holy

Ghost” had “told” him to do and to not, in a legal sense, be deliberating.

If, in fact, a juror was not actually deliberating and considering the evidence

presented at trial to form his verdict but was rather basing his verdict on what he

believed a “Higher Being” or the “Holy Ghost” had “told” him, that would present

a serious problem, since it would violate the parties’ “right to receive a verdict

rendered by a jury that follows the law.” Kemp, 500 F.3d at 304. Because the district

court reasonably concluded that these very circumstances could exist in Brown’s

case, the district court did not abuse its discretion in making further inquiry.

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Once the district court determined to continue the investigation, we cannot

say it abused its discretion in choosing to further the inquiry by interviewing Juror

13. Even Brown agreed that if the record could justify further inquiry, the court

should proceed this way. So while we find no error in the district court’s decision

to conduct additional investigation by asking Juror 13 questions, even if the court

should have set upon a different course of action after it determined it needed to

engage in more inquiry, Brown invited any error that may have existed in the district

court’s particular choice to interview Juror 13. See United States v. Love, 449 F.3d

1154, 1157 (11th Cir. 2006) (“It is a cardinal rule of appellate review that a party

may not challenge as error a ruling or other trial proceeding invited by that party.”

(citation and quotation marks omitted)). For that reason, to the extent Brown takes

issue with the district court’s decision to proceed by interviewing Juror 13 (in

addition to her objection to the district court’s determination to follow up on its

questioning of Juror 8), we do not consider her claim.

B.

Brown next objects to the district court’s determination, after questioning

Juror 13, to dismiss him from the jury. This objection potentially requires us to

assess two questions. First, we must consider whether the district court clearly erred

in its factual findings leading to its decision to dismiss Juror 13. If it did not, we

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must then address whether, in light of the district court’s factual findings, the district

court abused its discretion in dismissing Juror 13. We find no basis for reversal.

To put into perspective the questions we must consider, we begin our inquiry

with a brief review of our jury system. “The jury is a central foundation of our

justice system and our democracy.” Pena-Rodriguez v. Colorado, 137 S. Ct. 855,

860 (2017). For centuries, it “has been an inspired, trusted, and effective instrument

for resolving factual disputes and determining ultimate questions of guilt or

innocence in criminal cases.” Id. Though the jury system is not without its flaws,

juries reach “fair and impartial verdicts” by undertaking “deliberations that are

honest, candid, robust, and based on common sense.” Id. at 861. That process

engenders the community to accept jury verdicts, “an acceptance essential to respect

for the rule of law.” Id. at 860.

Bedrock to that trusted system, a juror’s deliberations and “verdict must be

based upon the evidence developed at the trial[.]” Turner v. Louisiana, 379 U.S.

466, 472 (1965) (internal quotation marks omitted); Irvin v. Dowd, 366 U.S. 717,

722 (1961) (same). That requirement “goes to the fundamental integrity of all that

is embraced in the constitutional concept of trial by jury.” Turner, 379 U.S. at 472.

Due process also requires “a jury capable and willing to decide the case solely on

the evidence before it, and a trial judge ever watchful to prevent prejudicial

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occurrences and to determine the effect of such occurrences when they happen.”

Smith v. Phillips, 455 U.S. 209, 217 (1982) (emphasis added).

In other words, if a juror bases his decision on some improper consideration,

that deprives the parties of due process and shatters the Sixth Amendment’s promise

that a jury’s verdict will be based on the evidence. As we have noted, the entire

premise of a trial and all the precautions underlying the admission and exclusion of

evidence exist for the purpose of ensuring that verdicts are determined based on the

relevant and reliable evidence presented at trial. So conduct or beliefs that cause a

juror’s verdict to be rooted in something other than the evidence undermine the jury

and trial system as a whole. For these reasons, if our jury system is to be viewed as

legitimately convicting or acquitting individuals—a circumstance necessary to the

continued vitality of the rule of law in our country—jurors’ decisions must be based

on the evidence presented at trial.

1. The district court did not clearly err when it found that Juror 13 was not
capable of returning a verdict based on the evidence adduced at trial

With these principles in mind, we turn to the district court’s factual findings.

Brown and the Dissent argue that the district court clearly erred in finding “no

substantial possibility” that Juror 13 was capable of rendering a verdict rooted in the

evidence and that he would instead, irrespective of the evidence, base his verdict on

what he deemed to be a divine revelation from the “Holy Ghost.” Instead, Brown

and the Dissent assert that the district court should have concluded that Juror 13 was
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expressing only that he was relying on the “Holy Ghost’s” guidance in his own

personal and actual evaluation of the evidence adduced at trial. We respectfully

disagree that the district court clearly erred in reaching the factual finding it did.

First, we note the record here reflects no question about whether the district

court understood the governing law. It clearly did.

The district court repeatedly emphasized that “people pray for guidance and

so forth,” and that doing so is permissible and “to be respected.” On the other hand,

the district court properly distinguished a juror who engages in that activity from one

who holds a view that “would prevent him from ever determining that a defendant

was guilty on charges,” describing that circumstance as “problematic.” Put simply,

the district court understood its mission was to ascertain, based on its observations

and Juror 13’s testimony, which category Juror 13 fell into.

It also undoubtedly understood that it could dismiss a juror only if it found,

beyond a reasonable doubt, “no substantial possibility” that the juror was “basing

her decision on the sufficiency of the evidence.” Abbell, 271 F.3d at 1303. We

know this because the district court repeated the standard several times both during

the hearing and in its written order. Indeed, it expressly acknowledged that,

“[b]ecause of the danger that a dissenting juror might be excused under the mistaken

view that the juror is engaging in impermissible nullification[,] a juror should be

excused only when no substantial possibility exists that he is basing his decision on

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the sufficiency of the evidence”—and even then, only when the court makes this

finding “beyond a reasonable doubt.” Dist. Ct. Order at 18 (cleaned up). Only after

acknowledging all these standards did the district court expressly find “beyond a

reasonable doubt that there was no substantial possibility [that Juror 13] could base

his decision on the Court’s instructions and the evidence adduced at trial.” Id. at 25.

We review the district court’s determination on that point for clear error, since

it is a factual finding, and there is no question that the district court, in reaching it,

applied the correct standards. Abbell, 271 F.3d at 1302-03.

The district court is “uniquely situated” to evaluate credibility. Id. at 1303.

On appeal, we read a “cold record,” whereas the district court “had the opportunity

to see live testimony.” Id. (quoting Owens v. Wainwright, 698 F.2d 1111, 1113 (11th

Cir. 1983)).

And evaluating “the demeanor of the pertinent juror” is particularly critical

when it comes to juror-misconduct determinations. Abbell, 271 F.3d at 1303.

Because of the district court’s particular vantage point, we have explained that a

district court’s factual finding is clearly erroneous only if it leaves us with “a definite

and firm conviction that a mistake has been committed.” United States v. Almedina,

686 F.3d 1312, 1315 (11th Cir. 2012). “It is seldom easy to establish clear error,”

and it is “especially difficult to do . . . where the district court was on the scene.”

United States v. Godwin, 765 F.3d 1306, 1318 (11th Cir. 2014).

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As we have noted, the district court dismissed Juror 13 because, after “inquiry

and observ[ation] of [him],” it found “beyond a reasonable doubt that there was no

substantial possibility that [Juror 13] could base his decision on the sufficiency of

the evidence and the Court’s instructions.” The district court reached its conclusion

after considering and reflecting on Juror 13’s own words and the district court’s

observations of Juror 13 during the inquiry. Only then did the court conclude that

Juror 13—regardless of his intent—was not capable of making a decision rooted in

the evidence presented at trial and the court’s instructions, instead of based on what

Juror 13 believed he was “told” by the Holy Spirit to do.2

Beginning with his own words, Juror 13 stated that he “received information

[from his “Father in Heaven”] as to what [he] was told to do in relation to what [he]

heard here . . . this past two weeks”—specifically to find Brown not guilty of all 24

charges. The Dissent makes much of the second part of the quotation—“in relation

to what [he] heard here . . . this past two weeks.” See Dissent at 69-71. It construes

this phrase to mean that Juror 13 was expressing that he was basing his verdict on

the evidence. And, in a vacuum, that is certainly one reasonable construction. But

it’s not the only reasonable one. The second part of the quotation could alternatively

2
The Dissent contends that the district court could not have made that finding “beyond a
reasonable doubt” without “know[ing] what was happening in Juror [ ] 13’s mind, much less his
soul[.]” Dissent at 115. We, however, are confident that district courts, like jurors in criminal
cases, may reach that level of confidence based on direct and circumstantial evidence and without
perfect insight into one’s mind or soul.
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mean that Juror 13 “received information [from his “Father in Heaven”] as to what

[he] was told to do in relation to” the trial, generally. So it was the district court’s

job to determine, if it could, based on Juror 13’s complete testimony and the district

court’s observations of Juror 13’s demeanor during the proceedings, which of these

things Juror 13 meant. Ultimately, after the district court heard all of Juror 13’s

testimony and evaluated his demeanor, it found that there was no substantial

possibility that Juror 13’s statement meant what the Dissent suggests. Rather, the

court concluded, it meant that Juror 13 understood himself to have received

directions from the Holy Spirit to acquit Brown on all charges presented at the trial,

irrespective of an independent assessment of the evidence.3

The court did not jump to this conclusion. Rather, when the district court was

unsure of what Juror 13 meant, it followed up with him. And Juror 13 later made

comments showing he was relying on the “information” he “received” from his

“Father in Heaven” to reach his verdict, irrespective of the evidence presented at

3
The Dissent contends that we “ignore[]” Juror 13’s general references to the evidence and
“repeatedly misrepresent[] Juror No. 13’s position as being ‘irrespective of the evidence.’” Dissent
at 63. The Dissent misunderstands our point. The question is not whether Juror 13 generally
referenced the evidence as a whole at some point or points during the colloquy; we expressly
acknowledge that he did. See, e.g., supra at 31. Indeed, that is what this part of our discussion is
about. The question is instead whether, despite his generalized statements, on this record, Juror
13 indicated he was not capable of basing his verdict on the evidence, in light of his perceived
divine revelation. Because we conclude that the district court did not clearly err in determining
Juror 13 was not capable of basing his verdict on the evidence—despite Juror 13’s general
references to the evidence as a whole—we speak in terms of what the district court found Juror 13
was actually doing, as opposed to what Juror 13’s “position” was, when we state that Juror 13
relied on his perceived divine revelation, “irrespective of the evidence.”
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trial. In this regard, Juror 13 volunteered that he advised his fellow jurors that “the

Holy Spirit told me that [“Corrine Brown was not guilty on all charges”],” to provide

“insight” to them into why he believed Brown was not guilty. In other words, to

justify the reason for his intended verdict, Juror 13 relied solely on his perceived

divine revelation, as opposed to any evidence presented at trial or any court

instruction.

The district court also pointed to the fact that Juror 13 talked about “all

charges” when he remarked that the Holy Spirit told him Brown was not guilty—

even though Juror 13 made this statement at the beginning of deliberations, at a time

when the jurors were supposed to be examining only the first count. See Dist. Ct.

Ord. at 22 (“Juror No. 13 admitted that he announced to his fellow jurors when they

began deliberating on the first charge that the Holy Spirit told him that Corrine

Brown was not guilty ‘on all charges.’”). As the district court recognized, when

Juror 13 commented on all the counts simultaneously, he was demonstrating that he

could not examine the evidence as it related to each count individually but rather

was tied to resolving each claim based solely on what he perceived the Holy Spirit

told him to do with respect to the case as a whole, irrespective of the evidence. That

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too supported the district court’s conclusion that Juror 13 was unable to make a

decision rooted in the evidence.4

And during his colloquy with the district court, Juror 13 did not on his own

characterize his religious inspiration as mere “guidance.” Rather, it was the court

that mentioned “guidance” during the colloquy. In contrast, Juror 13’s self-worded

responses to the court’s open-ended questions consistently characterized the

message he believed he received as a directive or conclusion. As we have noted,

initially, Juror 13 stated that he “received information” from “My Father in Heaven”

“as to what I was told to do.” (emphasis added). And later Juror 13 confirmed that

he advised the other jurors that “the Holy Spirit told” him that “Corrine Brown was

not guilty on all charges.” In short, without stating that the Holy Spirit provided

mere “guidance,” Juror 13, unprompted, himself characterized his perceived divine

revelation as the Holy Spirit’s conclusion.

4
Based on the district court’s emphasis of the words “on all charges” from Juror 13’s
quotation, the Dissent suggests that the district court improperly may have dismissed Juror 13
“because Brown was charged with 24 counts, [so] she must be guilty of at least some of them.”
Dissent at 110-12. Of course, if the district court had dismissed Juror 13 for that reason, that would
be improper and would require reversal. But the Dissent points to nothing to support its theory.
Nor can it. It is clear from the district court’s statement that “Juror No. 13 . . . announced to his
fellow jurors when they began deliberating on the first charge that the Holy Spirit told him that
Corrine Brown was not guilty on all charges” (and the order as a whole) that the district court
relied on the words “on all charges” to show that Juror 13 was not, in fact, able to consider the
evidence as it related to a single individual count but was rather wholesale applying his perceived
divine revelation to every count, irrespective of the evidence, just as he perceived the Holy Spirit
told him to do. (emphasis added).
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The district court also noted that Juror 8 reported that Juror 13 had twice made

statements about receiving direction from the Holy Spirit and that these statements

had occurred some hours apart—once at the start of deliberations, during the jury’s

discussion of the first of 24 charges, and again later that day. 5 In other words, even

after the jury had been engaged in deliberations for hours, Juror 13 continued to

adhere to his belief that “the Holy Spirit told [him]” that “Corrine Brown was not

guilty on all charges.” The district court reasonably could have construed this

second statement as indicating that, despite sitting through deliberations, Juror 13

was not actually considering the evidence and would not base his verdict on it, but

rather would base his verdict on what he believed the Holy Spirit had “told” him

about Brown’s guilt.

Besides Juror 13’s own words, the district court found that Juror 13 “was

hesitant at first to explain . . . how his religious views ha[d] come to the fore during

deliberations.” After all, the district court’s colloquy shows that it asked repeated

5
The Dissent speculates that after initially telling the other jurors about his perceived
divine revelation, Juror 13 “stopped using” “religious language.” Dissent at 105. The record,
however, belies that speculation. Juror 8 testified that Juror 13 stated both at the outset of
deliberations and then again a few hours later comments to the effect that the Holy Spirit told him
Brown was not guilty on all counts. So, by his own words, Juror 13, was continuing to base his
verdict not on the evidence but instead on his perceived divine revelation—even after hours of
deliberations. The district court credited Juror 8’s testimony in this regard, and the Dissent has
pointed to nothing that shows the district court’s decision to do so was clear error. Nor does the
Dissent’s sheer speculation about what might have occurred in the jury room provide any basis to
conclude the district court clearly erred in finding “that Juror [ ] 13 would continue in the same
vein if permitted to remain.” Plus, regardless of how often Juror 13 made his statement, if he
demonstrated to the district court during its inquiry that he was unable to base his verdict on the
evidence, the district court was right to dismiss him.
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specific questions to Juror 13 about “any kind of statements” he “may have made”

to the other jurors “to the effect that a higher being [was] telling [him] how—[was]

guiding [him] on these—on these decisions.” The court even asked “Can you tell

me, as best you can, what you said” in this regard. In response, Juror 13 did not state

that he had said to the other jurors that the Holy Spirit had told him Brown was not

guilty on all charges. Rather, Juror 13 spoke in generalities. In fact, he did not

disclose his actual statement until the district court dismissed him momentarily,

brought him back in, and then asked him point-blank whether he had made the

specific statement, “A higher being told me that Corrine Brown was not guilty on all

charges?”.

Throughout these proceedings, which lasted over an hour and a half, the

district court considered the evidence before it and evaluated Juror 13’s credibility

and demeanor. Accounting for all of these observations and Juror 13’s own words,

the district court, “looking [at] and judging the credibility” of Juror 13, concluded

that, on this particular record, Juror 13’s belief that the Holy Spirit “told” him that

Brown was innocent prevented Juror 13 from fulfilling his duty to follow the court’s

instructions about the law and base his verdict on the evidence presented at trial.

On review of this record, we are not left with the “definite and firm

conviction” that the court committed a mistake when it determined that there was no

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substantial possibility that Juror 13 would rely for his decision on the evidence at

trial. See Almedina, 686 F.3d at 1315.

The Dissent’s argument that the district court clearly erred in its factual

finding because Juror 13 himself stated he (sincerely) believed that he was

deliberating in accordance with the court’s instructions is not convincing. See

Dissent at 76-77. The juror is not the factfinder on issues of juror misconduct. So a

juror’s self-assessment of his ability to decide a case solely on the evidence cannot

be the beginning and end of a district court’s basis for determining whether a juror

should be dismissed, when a juror has demonstrated that he cannot, in fact, reach a

verdict rooted in the evidence. Here, the district court did not ignore Juror 13’s

statements about his ability to follow the court’s instructions. To the contrary, the

district court explicitly accounted for them and for Juror 13’s sincerity and

earnestness. Nevertheless, even considering all these factors, the district court

concluded that Juror 13’s “statement that he was following [the court’s] instructions

did not convince [the court] that he was able to do so.” For the reasons we have

explained, we find no clear error in that factual finding.

2. The district court did not abuse its discretion in dismissing Juror 13 after
finding that he was not capable of reaching a verdict based on the
evidence

Because the district court did not clearly err in finding that Juror 13 was not

capable of deciding the case based on the evidence, we must consider whether the

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district court, in light of this determination, abused its discretion when it decided to

dismiss Juror 13. See Godwin, 765 F.3d at 1316 (citing United States v. Register,

182 F.3d 820, 839-40 (11th Cir. 1999)). We conclude that it did not.

As we have discussed, a juror must base his verdict upon the evidence

presented at the trial. An inability to follow that rule serves as good cause for a

district court to excuse a juror. See Godwin, 765 F.3d at 1316. 6 Indeed, once the

district court permissibly determined that there was no substantial possibility Juror

13 could reach a verdict rooted in the trial evidence, excusing the juror was the only

correct course of action to preserve the integrity of the jury’s fact-finding function.

We are not persuaded by Brown’s arguments to the contrary. She first asserts

the district court could not excuse Juror 13 because it found that his violation of the

6
The Dissent claims we have failed to “grapple[] with” Eleventh Circuit caselaw, such as
Godwin, which involved the dismissal of jurors when the jurors themselves stated that they were
unable to follow the law. Dissent at 59-60. But there is nothing to “grapple[] with.” That we
approved of juror dismissals when the facts in those cases required us to do so does not somehow
suggest that a district court may dismiss jurors only when such facts are present. United States v.
Thomas, 116 F.3d 606, 622 (2d Cir. 1997), and United States v. Brown, 823 F.2d 591, 596 (D.C.
Cir. 1987), out-of-Circuit cases that the Dissent cites for the proposition that “when a juror speaks
in terms of the evidence in explaining his position, we cannot say that it is beyond doubt that the
juror’s position during deliberations was the result of his defiant unwillingness to apply the law,
as opposed to his reservations about the sufficiency of the Government’s case,” Dissent at 62-63
(cleaned up), are similarly inapplicable. There, the jurors at issue were incorrectly dismissed for
refusal to apply the law, even though the jurors stated that the evidence did not support guilt. At
no point during the proceedings in those cases did the district courts have reason to believe that
the jurors there were not capable of deciding the case based on the evidence. Nor did the district
courts there find beyond a reasonable doubt that the jurors would not, in fact, decide the case on
the evidence. So on those records, the district courts erred in dismissing the jurors in Thomas and
Brown. But here, Juror 13 did not refuse to decide the case on the evidence; rather, the court
found he was not capable of doing so, despite his best efforts. And as we have explained, we
cannot find clear error in that conclusion on this record.
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court’s instructions was not “deliberate.” But a juror’s misconduct need not be

deliberate to provide good cause to excuse that juror. See, e.g., United States v.

Wilson, 894 F.2d 1245, 1249-51 (11th Cir. 1990). If a juror cannot base his verdict

on the evidence adduced at trial—no matter the reason why—good cause to excuse

that juror exists. For the same reason, that the district court found Juror 13 to be

“earnest” and “sincere” in his belief about his ability to follow the court’s

instructions did not preclude it from dismissing him in the circumstances here, where

the court concluded that, despite his good intentions, Juror 13 was simply not

capable of deciding the case based on the evidence.

Nor, as the Dissent contends, do we hold that statements about perceived

divine revelations “prove ‘by definition’ that [the juror’s] thought processes were

improper.” Dissent at 96. No doubt, on a different record, where a district court

evaluates the demeanor of a different juror, that court might find a juror’s statements

about his perceived divine revelations to be merely “idiom[s],” Dissent at 99, 106-

07, used to describe only prayer, and that court might conclude that that juror will

base his verdict on the evidence. We would, of course, review such a finding using

the same deferential lens we apply here. But on the present record, we cannot say

that the district court clearly erred when it determined Juror 13 was incapable of

deciding the case based on the evidence and instead would reach a verdict because

the Holy Spirit told him what that verdict should be, irrespective of the evidence.

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Brown also argues that our affirmance of the district court’s decision to excuse

Juror 13 conflicts with State v. DeMille, 756 P.2d 81 (Utah 1988). But to the extent

that is true, we are not bound by DeMille. Nor do we find it persuasive.

In DeMille, after the jury returned a guilty verdict, the court learned that a

juror revealed during deliberations that earlier in the trial, she had prayed for a sign

concerning the defendant’s guilt. DeMille, 756 P.2d at 83. In response to her

prayers, this juror stated, she had received a divine revelation that the defendant was

guilty if defense counsel did not make eye contact with the juror during closing

argument. Id. So when defense counsel did not make eye contact with the juror

during his closing argument, the juror voted to convict, based on that circumstance.

Id. Despite this occurrence, the trial court denied the defendant’s motion for a new

trial, and the Supreme Court of Utah affirmed. Id. at 82, 84-85. In reaching this

conclusion, the Utah court reasoned that if it determined otherwise, it “would

implicitly be holding that it is improper for a juror to rely upon prayer, or supposed

responses to prayer, during deliberations.” Id. at 84.

We are not persuaded by DeMille for two reasons.

First, the posture of DeMille differed from Brown’s case in an important way.

In DeMille, the juror issue arose under Utah’s equivalent of Rule 606(b), Fed. R.

Evid., after the jury had already returned the verdict. In Brown’s case, though, the

judge dismissed Juror 13 before deliberations ended, so as we explain in Section

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II.C. below, a different standard governed the inquiry. As a result, DeMille is not

instructive here.

Second, the DeMille juror confessed that the decisive factor in her guilty vote

relied solely on the fortuity of whether defense counsel happened to make eye

contact with her during closing argument—something that occurred (or actually, did

not occur) before the jury even began deliberations. By her own admission, then,

the DeMille juror did not reach her guilty verdict during deliberations. Nor did she

find the defendant guilty as a result of considering the evidence adduced at trial.

Even if we assume that a post-verdict case such as DeMille is instructive on the

standard for dismissing a juror during deliberations, we do not agree that it is

acceptable under our system of justice to convict someone and send them to jail not

because of the evidence but rather simply because his counsel had poor eye contact.7

There is certainly nothing wrong with jurors choosing to pray for wisdom and

guidance in adjudging the evidence. But in our system, ultimately, jurors must root

their verdicts in the evidence and the court’s instructions on the law. Because the

district court permissibly found that Juror 13 was unable to comply with that cardinal

precept, it did not abuse its discretion by excusing Juror 13 based upon that finding.

7
Though it favorably cites DeMille two times, Dissent at 91, 94, the Dissent does not
indicate whether it believes the principles of that Rule 606(b) case apply to the mid-deliberations
context. To the extent the Dissent believes DeMille is applicable here, it provides no support for
that position and we respectfully disagree.

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Finally, we must address the Dissent’s contentions that our decision today

“ordains district courts with broad discretion to dismiss any juror who confesses

receiving guidance from God” and “makes it far more difficult for the citizens of our

Circuit to be judged by juries that represent a cross-section of their communities.”

Dissent at 54. Not so.

Nothing about our decision requires or even permits the dismissal of a juror

simply because of the proclaimed strength of his religious beliefs. Rather, today’s

ruling reaffirms that a district court must engage in a case-by-case evaluation when

faced pre-verdict with plausible allegations that a juror may not decide the case based

on the evidence. Under that framework, a district court may dismiss a juror pre-

verdict only after evaluating all the evidence and making a specific determination in

the circumstances of that case that that particular juror will not base his verdict on

the evidence—regardless of the reason for the juror’s failure or inability to do so.

So today’s ruling does nothing more than revalidate the well-established and

crucial principle that jurors must decide cases based on the evidence. If a juror is

not capable of conforming to that rule, it makes no difference why that is so.

Here, the district court dismissed Juror 13, plainly and simply, because on this

particular record, it concluded as a matter of fact that Juror 13 was not capable of

rendering a verdict based on the evidence. Our holding today is a very narrow one,

based on the particular facts of this record. That record reflects that the district court

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was very careful to ensure it was not dismissing Juror 13 because of Juror 13’s faith

or because Juror 13 had prayed for and thought he had received guidance in

evaluating the evidence and in actually making a decision based on that evidence.

The district court showed that it understood—and we take this opportunity to

emphasize—these things are allowed under our system and continue to be permitted

fully under our decision today, whether jurors believe they communicate with a

higher being or not, see Dissent at 113, as long as the juror is willing and able to root

his verdict in the evidence.

It should also go without saying—though we must because the Dissent

suggests otherwise—that the rule dismissing jurors who cannot or will not decide

cases based on the evidence does not discriminate against African Americans and

evangelical Christians. See Dissent at 54, 112-115. Rather, it safeguards them and

everyone else equally, by protecting the cornerstone of our Constitution’s guarantee

that a person will not find himself convicted of a crime for a reason that is not based

on the evidence.

The Dissent frames its argument in terms of unfairness to defendants. But

there is nothing unfair about dismissing a juror who shows himself to be incapable

of arriving at a verdict based on the evidence. As we have explained, the reason we

have trials is so we can secure verdicts based on the evidence.

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On the other hand, the Dissent’s position would unfairly allow a defendant to

be convicted based not on the evidence presented at trial but instead on a juror’s

belief that a divine being had told the juror of the defendant’s guilt, irrespective of

the evidence. In fact, the Dissent does not contest this proposition. Worse, in the

Dissent’s view, so long as such a juror sincerely believed he was following the

court’s instructions, the district court would be powerless to preserve the defendant’s

right to be convicted based on only the evidence presented at trial. In short, we think

the real injustice would be allowing jurors who are incapable of basing their verdict

on the evidence to convict our citizens. And our Constitution does not allow for

such an outcome.

C.

Next, Brown contends that the court’s inquiry into Juror 13’s statement

violated Rule 606(b) of the Federal Rules of Evidence. Once again, we disagree:

Rule 606(b) did not apply to the court’s inquiry. 8

As relevant here, Rule 606(b) governs the admissibility of juror testimony as

it relates to the validity of a verdict. It provides, in relevant part,

(b) During an Inquiry into the Validity of a Verdict . . . .
(1) Prohibited Testimony or Other Evidence. During an inquiry into the
validity of a verdict . . . , a juror may not testify about any statement

8
The parties dispute whether Brown preserved this argument. Because Rule 606(b) did
not apply to the proceeding in question, even if Brown did not forfeit the argument, the debate
over whether we should review the issue for an abuse of discretion or for plain error is academic,
and we therefore apply the abuse-of-discretion standard.
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made or incident that occurred during the jury’s deliberations; the
effect of anything on that juror’s or another juror’s vote; or any
juror’s mental processes concerning the verdict or indictment. The
court may not receive a juror’s affidavit or evidence of a juror’s
statement on these matters.
(2) Exceptions. A juror may testify about whether:
(A) extraneous prejudicial information was improperly brought
to the jury’s attention;
(B) an outside influence was improperly brought to bear on any
juror; or
(C) a mistake was made in entering the verdict on the verdict
form.

By its own terms, nothing in Rule 606(b) applies to mid-deliberation inquiries

into alleged juror improprieties. See Fed. R. Evid. 606(b); Warger v. Shauners, 574

U.S. 40, 44-45 (2014). Rather, as the Supreme Court has recently explained, this

rule protects against “disrupt[ing] the finality of the process” and “undermin[ing]

both jurors’ willingness to return an unpopular verdict and the community’s trust in

a system that relies on the decisions of laypeople.” Pena-Rodriguez, 137 S. Ct. at

866 (cleaned up). It also addresses the concern that “if attorneys could use juror

testimony to attack verdicts, jurors would be harassed and beset by the defeated

party, thus destroying all frankness and freedom of discussion and conference”

during deliberations. Id. (cleaned up).

But a court’s inquiry into allegations of juror misconduct that have come to

the court’s attention before a verdict is rendered, as in this case, cannot affect the

finality of the process because when such an inquiry occurs, the process, of course,

has not yet become final. Nor does it open all deliberations to inquiry or attack,
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since it does not permit attorneys the right to investigate the deliberations, as the

absence of Rule 606(b) would do to verdicts, and it allows district courts to make

only limited inquiry of jurors and only when the circumstances warrant it. So pre-

verdict inquiries into allegations of juror misconduct do not fall within Rule 606(b)’s

bailiwick, either by the rule’s terms or by its purposes.

D.

Finally, Brown argues that, in excusing Juror 13, the court violated the RFRA,

the First Amendment, and the Sixth Amendment. Brown did not advance these

claims below, so we review for plain error. United States v. Harris, 886 F.3d 1120,

1127 (11th Cir. 2018).

To meet the standard for plain error, Brown must show that there was error,

that the error was plain, that the error affected her substantial rights, and that the

error seriously affected the fairness, integrity, or public reputation of judicial

proceedings. United States v. Olano, 507 U.S. 725, 732-34 (1993). We have

emphasized that “there can be no plain error where there is no precedent from the

Supreme Court or this Court directly resolving [the issue].” United States v.

Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003).

Brown identifies no precedent resolving her arguments based on the RFRA.

Nor does she point to binding precedent on her First Amendment or Sixth

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Amendment arguments. As a result, she cannot demonstrate plain error for this

reason alone, and her challenges must fail.

Nevertheless, it is worth noting that Brown cannot show error on the merits,

either. As her claims relate to the RFRA, that statute provides that the “Government

shall not substantially burden a person’s exercise of religion” unless the Government

“demonstrates that application of the burden to the person—(1) is in furtherance of

a compelling governmental interest; and (2) is the least restrictive means of

furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1(a), (b).

Ensuring that jurors in criminal cases are “able to follow the law and apply the facts

in an impartial way” is surely a compelling governmental interest. United States v.

Mitchell, 502 F.3d 931, 954 (9th Cir. 2007).

And “excluding jurors who are unable to” impartially follow the law and apply

the facts of a case—even if it is on account of their constitutionally protected

religious beliefs—is the “least restrictive means to achieve that end.” Id. Indeed,

when a juror’s protected religious beliefs conflict with the ability of the jury system

to function and with due process at trial, it is incumbent upon the judge presiding

over the trial to separate the juror from the proceeding. By protecting the jury system

and due process, of course, the trial judge does not limit the juror’s religious

freedoms.

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Brown’s constitutional arguments are no more persuasive. In particular, she

asserts that Juror 13 had a First Amendment right to serve on a jury without

disqualification on the basis of his religious beliefs and that, by removing the juror,

the trial court violated Brown’s Sixth Amendment right to a trial by a lawfully

empaneled jury. Brown likens her argument to the one underlying Batson v.

Kentucky, 476 U.S. 79 (1986). She contends that just as a prosecutor is not permitted

to exercise a peremptory strike on a prospective juror solely on account of the juror’s

race, the trial court could not excuse Juror 13 because of his religion.9

But here, the district court did not dismiss Juror 13 because of Juror 13’s

religion. Rather, it dismissed him because it found him incapable of rendering a

verdict rooted in the evidence. So long as the district court’s ruling in that respect

was not clearly erroneous, it makes no difference why Juror 13 was incapable of

arriving at a verdict based on the evidence.

III.

Brown also appeals from the district court’s forfeiture order. She concedes

that she did not raise an objection to that order before the district court but contends

that the court’s order constituted plain error. Brown argues that, under Honeycutt v.

9
While we can certainly appreciate the general concern that otherwise-capable jurors
should not be dismissed because of their religious beliefs, for the sake of completeness, we must
note that, perhaps surprisingly, the question of whether a juror’s religion may be relied upon in the
empaneling a jury is not currently a settled one. See, e.g., United States v. Heron, 721 F.3d 896,
902 (7th Cir. 2013); United States v. Brown, 352 F.3d 654, 666-70 (2d Cir. 2003); United States
v. DeJesus, 347 F.3d 500, 509 n.7 (3d Cir. 2003) (collecting cases).
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United States, 137 S. Ct. 1626 (2017), 21 U.S.C. § 853 did not authorize the court

to order her joint and severally liable for property that a co-conspirator derived from

the crime.

Brown’s argument is deeply flawed. Brown premises her argument on her

assertion that the district court’s forfeiture order was issued “pursuant to 21 U.S.C.

§ 853.” That statute mandates forfeiture upon conviction for certain drug crimes.

Brown was not found guilty of any drug crimes, so 21 U.S.C. § 853 is irrelevant to

her case. Instead, the district court properly issued its forfeiture order under the

authority of 18 U.S.C. § 981(a)(1)(C). This grave error on Brown’s part is fatal to

her argument, since the decision in Honeycutt was highly dependent on language

found in 21 U.S.C. § 853 but absent from 18 U.S.C. § 981.

And even if we were inclined to apply Honeycutt to forfeiture orders

authorized by 18 U.S.C. § 981, Brown’s argument would still fail. Brown relies on

Honeycutt for the proposition that “forfeiture pursuant to 21 U.S.C. § 853 ‘is limited

to property the defendant himself actually acquired as the result of the crime.’” Here,

though, the district court found the United States had “established that [Brown]

obtained” the full forfeiture amount “as a result of the offenses of conviction” and

therefore ordered that she was liable for that amount “individually.” Since the

district court concluded that Brown had “acquired” the full amount at issue and that

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she was “individually” liable for it, the concerns raised in Honeycutt are completely

absent from her case.

For these reasons, the district court’s forfeiture order was not plain error.

IV.

For the reasons we have explained, we affirm the judgment of the district

court.

AFFIRMED.

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CONWAY, District Judge, concurring specially:

I concur in Judge Rosenbaum’s opinion because it correctly characterizes

the record in this case, and it correctly analyzes the law of juror removal consistent

with United States v. Abbell, 271 F.3d 1286 (11th Cir. 2001). I write separately to

emphasize that this is not a case which turns on a juror’s religious beliefs or

religious freedom to engage in prayer or seek guidance during deliberations when

applying the law to the evidence in the case. Rather, it is a straightforward case

about whether the district court—having concluded based on direct questioning

that a juror was not following the court’s instructions—abused its discretion in

dismissing that juror based on an assessment of the juror’s credibility and capacity

to follow the court’s instructions. Whenever a district court determines that any

factor extrinsic to the trial—whether a juror’s stubborn unwillingness to follow the

law or evasive answers about that obligation—has so strongly influenced a juror

that there is “no substantial possibility” he will base his decision on the evidence in

the case, the decision to dismiss the juror is not an abuse of discretion. See id. at

1303-04 (affirming dismissal of juror who told other jurors that she was not going

to follow the law and, after further instructions from the court, continued in her

refusal to consider the evidence or discuss the applicable law); United States v.

Augustin, 661 F.3d 1105, 1132 (11th Cir. 2011) (affirming dismissal of juror who

responded evasively and with long pauses to the court’s questions that she was

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“willing to follow” the court’s instructions, “[b]ut I’m still entitled to my own—

you know, what I feel”).

Following hesitant answers to the court’s initial set of questions, Juror 13

admitted in response to the district court’s direct question that he had expressed to

the rest of the jurors at “the very beginning” of deliberations that “the Holy Spirit

told” him Brown was not guilty on all charges. The district court’s decision to

dismiss Juror 13 was based on “inquiry and observ[ation]” of Juror 13 during the

court’s questioning. “[B]ecause the demeanor of the pertinent juror is important to

juror misconduct determinations, the district court is uniquely situated to make the

credibility determinations that must be made in cases like this one: where a juror’s

motivations and intentions are at issue.” Abbell, 271 F.3d at 1303 (citation

omitted).

Thus, I concur that the district court’s determination that Juror 13 was not

complying with the court’s explicit instructions to decide the case solely on the law

and the evidence in the case was not an abuse of discretion on the record before us.

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WILLIAM PRYOR, Circuit Judge, dissenting:

Do each of you solemnly swear that you will well and truly try the case
now before this court and render a true verdict, according to the law,
evidence, and instructions of this court, so help you God?

Every juror who was empaneled in Corrine Brown’s criminal trial swore this

oath. One of them was dismissed because he apparently meant it. By approving his

dismissal, the majority erodes the “tough legal standard” governing the removal of

deliberating jurors and imperils the sanctity of the right to trial by jury. United

States v. Abbell, 271 F.3d 1286, 1302 (11th Cir. 2001) (requiring that juror

misconduct be proven “beyond reasonable doubt” before dismissing a deliberating

juror). And it does so in an especially troubling manner: after admitting that “one

reasonable construction” of the record supports the view that this juror rendered

proper service, it holds that the district court’s adverse reaction to the way this

juror talked about God nevertheless proved “beyond a reasonable doubt” that the

juror engaged in misconduct. Majority Op. at 29–31 (emphasis added).

Over an hour and a half on the third day of jury deliberations, the district

court investigated a concern about a juror who, on the first day, reportedly twice

used religious language to express his position. During that hour and a half, the

suspect juror repeatedly affirmed that he was basing his decision on the evidence.

He even explained that he considered it his religious duty to do so. The district

court thought he meant what he was saying; in the district court’s words, the

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suspect juror was “very earnest” and “very sincere.” The other juror who had

raised the concern agreed that the suspect juror was deliberating, and she implied

that he had not said anything worrisome during the second day of deliberations.

Indeed, she never even accused him of misconduct.

But none of these encouraging signs mattered once the suspect juror

confirmed that, near the start of deliberations, he had said something to the effect

of “the Holy Spirit told me that Corrine Brown was not guilty on all charges.”

With next to no context—and no other evidence of misconduct—the district court

deemed this statement “an expression that’s a bridge too far, consistent with jury

service as we know it,” and conclusive proof that the juror was “using external

forces to bring to bear on his decision-making in a way . . . inconsistent with his

jury service and his oath.”

To be sure, the risk of juror misconduct in deliberations is one of the most

sensitive problems that can arise in a criminal trial, and the district court took its

responsibilities seriously. Alas, to err is human, to forgive divine, but forgiveness

is not a comfort afforded to a court of appeals. And the district court’s error in this

appeal is clear. If this devout juror’s religious language alone proved his

misconduct “beyond reasonable doubt,” Abbell, 271 F.3d at 1302, then the phrase

“reasonable doubt” has changed its meaning.

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The majority opinion suffers from several flaws. Foremost, it fails to adhere

to our precedents governing the dismissal of a juror. Our precedents impose a

“tough” standard of proof—indeed, the highest standard of proof known to law,

“beyond a reasonable doubt”—before a district court can purge a deliberating

juror. After paying lip service to this standard, the majority ordains district courts

with broad discretion to dismiss any juror who confesses receiving guidance from

God. But the majority fails to view that discretion through the lens of the tough

standard imposed by our precedents, and so it fails to appreciate why the limited

record below does not satisfy our standard. The majority then compounds these

errors by misconstruing the import of the juror’s religious statements—which were

spoken in the vernacular of a substantial segment of our citizenry—and by failing

to understand why these statements were not conclusively disqualifying. The

upshot of these errors is that the majority’s decision makes it far more difficult for

the citizens of our Circuit to be judged by juries that represent a cross-section of

their communities. Indeed, it even provides discriminating lawyers with a tool to

target and eliminate certain demographics from jury service. For example, African

American and evangelical Christians are more likely than others to believe that

God speaks to them, and the majority’s decision now requires that these eligible

jurors be stricken for cause if a discriminating lawyer elicits during voir dire that

God communicates with them. For these reasons, I must dissent.

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A. The Standard of Proof for the Dismissal of a Deliberating Juror Is
Rigorous.

The Anglo-American legal tradition has regarded few rights as more sacred

than that of a criminal defendant to be tried by a jury of his peers. To Blackstone, it

was “the glory of the English law,” “the most transcendent privilege,” and “[a]

constitution, that . . . ha[d], under providence, secured the just liberties of [the

English] nation for a long succession of ages.” 3 William Blackstone,

Commentaries *379. Our Founding generation thought the right to a criminal jury

so precious that it enshrined it in the Constitution twice. See U.S. Const. Art. III,

§ 2 (“The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury

. . . .”); id. Amend. VI (“In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of the State and district

wherein the crime shall have been committed . . . .”). Justice Story went as far as to

write that the Constitution “would have been justly obnoxious to the most

conclusive objection, if it had not recognised, and confirmed [this right] in the

most solemn terms.” 3 Joseph Story, Commentaries on the Constitution of the

United States § 1773, at 653 (Cambridge, Brown, Shattuck & Co. 1833).

The right of trial by jury “is no mere procedural formality, but a fundamental

reservation of power in our constitutional structure. Just as suffrage ensures the

people’s ultimate control in the legislative and executive branches, jury trial is

meant to ensure their control in the judiciary.” Blakely v. Washington, 542 U.S.

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296, 305–06 (2004). In particular, “[t]he jury trial right protects [defendants] from

being judged by a special class of trained professionals who do not speak the

language of ordinary people and may not understand or appreciate the way

ordinary people live their lives.” Pena–Rodriguez v. Colorado, 137 S. Ct. 855,

874–75 (2017) (Alito, J., dissenting). “Jurors are ordinary people. They are

expected to speak, debate, argue, and make decisions the way ordinary people do

in their daily lives. Our Constitution places great value on this way of thinking,

speaking, and deciding.” Id. at 874 (emphasis added). So, when a criminal

defendant insists on his right to a jury, he “is entitled to the uncoerced verdict of

that body.” Lowenfield v. Phelps, 484 U.S. 231, 241 (1988). And, in federal trials,

the Constitution requires a unanimous guilty verdict to convict. See Sanchez v.

United States, 782 F.2d 928, 931 (11th Cir. 1986).

The jury system protects defendants by establishing a critical division of

labor between the judge and the jury. Although the judge’s role is “to instruct the

jury on the law and to insist that the jury follow his instructions,” it remains “the

jury’s constitutional responsibility” both “to determine the facts” and “to apply the

law to those facts [to] draw the ultimate conclusion of guilt or innocence.” United

States v. Gaudin, 515 U.S. 506, 513–14 (1995). As an inaugural justice of the

Supreme Court insisted long ago, “[i]t is of the greatest consequence . . . that the

powers of the judges and jury be kept distinct: that the judges determine the law,

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and that the jury determine the fact. This well-known division between their

provinces has been long recognised and established.” 2 James Wilson, Lectures on

Law (1790–91), in The Works of the Honourable James Wilson 3, 371 (Phila.,

Lorenzo Press 1804).

Because our jury system works only when both the judge and the jury

respect the limits of their authority, it is well settled that “[j]ust cause exists to

dismiss a juror when that juror refuses to apply the law or to follow the court’s

instructions.” Abbell, 271 F.3d at 1302 (internal quotation marks omitted). Such a

juror abdicates his “constitutional responsibility,” Gaudin, 515 U.S. at 514, and

makes a mockery of his solemn oath. But “to remove a juror because he is

unpersuaded by the Government’s case is to deny the defendant his right to a

unanimous verdict.” United States v. Thomas, 116 F.3d 606, 621 (2d Cir. 1997).

And the distinction between these two kinds of jurors is “often difficult.” Id.

To guard against “the danger that a dissenting juror might be excused under

the mistaken view that the juror is engaging in impermissible nullification,” we

have established “a tough legal standard” for the dismissal of jurors during

deliberations. Abbell, 271 F.3d at 1302. Along with four of our sister circuits, we

have held that, “[i]n these kind[s] of circumstances, a juror should be excused only

when no ‘substantial possibility’ exists that she is basing her decision on the

sufficiency of the evidence.” Id. (citing Thomas, 116 F.3d at 621–22; United States

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v. Brown, 823 F.2d 591, 596 (D.C. Cir. 1987)); accord United States v. Kemp, 500

F.3d 257, 304 (3d Cir. 2007); United States v. Symington, 195 F.3d 1080, 1087 &

n.5 (9th Cir. 1999). And we have explained that “[w]e mean for this standard to be

basically a ‘beyond reasonable doubt’ standard.” Abbell, 271 F.3d at 1302.

This point bears emphasis because it is easy to miss in the majority opinion:

Under Abbell, the standard of proof that must be satisfied to dismiss a juror for

refusal to apply the law to the evidence is “basically,” id., identical with the

standard that assures “every individual going about his ordinary affairs . . . that his

government cannot adjudge him guilty of a criminal offense without convincing a

proper factfinder of his guilt with utmost certainty.” In re Winship, 397 U.S. 358,

364 (1970); see also Kemp, 500 F.3d at 304 (observing that the standard

“corresponds with the burden for establishing guilt in a criminal trial”). “[A] lower

evidentiary standard could lead to the removal of jurors on the basis of their view

of the sufficiency of the prosecution’s evidence,” Thomas, 116 F.3d at 622,

rendering a defendant’s right to an uncoerced and unanimous jury verdict

“illusory,” Brown, 823 F.2d at 596. “The courts must in all cases guard against the

removal of a juror—who aims to follow the court’s instructions—based on his

view on the merits of a case.” Thomas, 116 F.3d at 622 n.11.

In Brown’s trial, the district court instructed the jurors that “‘[p]roof beyond

a reasonable doubt’ is proof so convincing that you would be willing to rely and

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act on it without hesitation in the most important of your own affairs.” This

instruction “correctly conveyed the concept of reasonable doubt to the jury.”

Holland v. United States, 348 U.S. 121, 140 (1954). The Supreme Court has

“repeatedly approved” jury instructions that define a reasonable doubt as “a doubt

that would cause a reasonable person to hesitate to act.” Victor v. Nebraska, 511

U.S. 1, 20 (1994); see also Holland, 348 U.S. at 140; Hopt v. Utah, 120 U.S. 430,

441 (1887) (holding that an instruction “refer[ring] to the conviction upon which

the jurors would act in the weighty and important concerns of life[] would be likely

to aid them to a right conclusion”). The Court has also approved the instruction

“that if [the jurors can] reconcile the evidence with any reasonable hypothesis

consistent with the defendant’s innocence they should do so, and in that case find

him not guilty.” Hopt, 120 U.S. at 441 (emphasis added). “The evidence must

satisfy the judgment of the jurors . . . so as to exclude any other reasonable

conclusion.” Id. If the evidence did not establish beyond a reasonable doubt that

Juror No. 13 could not base his decision on the law and the evidence, then the

district court erred when it dismissed him.

Our precedents and the persuasive authority we invoked in Abbell are

instructive, although the majority grapples with none of them. In each of our

decisions approving the dismissal of a dissenting juror, the district court received

unambiguous information from the juror herself about her unwillingness or

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inability to follow the law, see United States v. Geffrard, 87 F.3d 448, 451, 453–54

(11th Cir. 1996); credible complaints of misconduct corroborated by all of the

other jurors, see United States v. Godwin, 765 F.3d 1306, 1315 (11th Cir. 2014);

Abbell, 271 F.3d at 1303–04 & n.18; or a combination of both, see United States v.

Oscar, 877 F.3d 1270, 1285–86 (11th Cir. 2017); United States v. Augustin, 661

F.3d 1105, 1129–32 (11th Cir. 2011). Our sister circuits have disapproved the

dismissal of jurors even where substantial evidence supported the conclusion that

the dismissed jurors were basing their decisions on disagreement with the law

because the jurors referred to the evidence in explaining their positions. See

Brown, 823 F.2d at 594, 596–97 (among other remarks, juror said that he “would

have not said [he] could be impartial” if he “had known at the beginning . . . what

the act said” but also that “[i]f the evidence was presented in a fashion in which the

law is written, then, maybe, I would be able to discharge my duties”); Thomas, 116

F.3d at 611, 623–24 (among other problems, at least five jurors reported that the

suspect juror had invoked legally irrelevant reasons for favoring acquittal, but

several jurors reported that the suspect juror “couch[ed] his position in terms of the

evidence”). And we expressly adopted Brown and Thomas’s standard in Abbell.

See 271 F.3d at 1302–03 & nn.14, 17.

The majority pays little attention to our precedent and this heightened

standard of proof. Instead, it stresses that “the district court understood the

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governing law,” Majority Op. at 28, before focusing on the discretion bestowed on

district courts when deciding whether to dismiss a juror after deliberations begin.

To be sure, the district court identified the correct legal standard, but identifying

the correct standard and applying that standard correctly are two different matters.

And the district court failed to apply our standard correctly.

As the majority points out, we do not stand in this appeal as factfinders in

the first instance. “The decision to excuse a juror for cause . . . is within the sound

discretion of the trial judge.” United States v. Taylor, 554 F.2d 200, 202 (5th Cir.

1977). “We will reverse the district court only if we find that it discharged the juror

‘without factual support, or for a legally irrelevant reason.’” Abbell, 271 F.3d at

1302 (alteration omitted) (quoting United States v. Register, 182 F.3d 820, 839

(11th Cir. 1999)). The district court “determine[d] as a matter of fact that no

substantial possibility exist[ed]” that Juror No. 13 was basing his decision on the

law and the evidence, and we “review that finding only for clear error.” Id. at 1303.

“A finding is ‘clearly erroneous’ when[,] although 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). This standard of review is deferential, but it is not

reverential.

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“And, importantly, in applying the clearly erroneous standard, a reviewing

court must take account of the standard of proof informing the trial court’s factual

finding.” Harry T. Edwards & Linda A. Elliott, Federal Standards of Review 26

(3d ed. 2018). The Supreme Court has clarified that the “mistake” that requires

reversal for clear error is “a mistake in concluding that a fact [was] proven under

the applicable standard of proof,” not necessarily a mistake about the ultimate fact

itself. Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Tr. for S.

Cal., 508 U.S. 602, 622–23 (1993). So, to reverse the denial of Brown’s motion for

a new trial, we need not have the definite and firm conviction that Juror No. 13

was following the law—although, obviously, we should reverse if we do. Instead,

we are bound to reverse if, on the entire evidence, we are firmly convinced that the

proof of Juror No. 13’s misconduct was not, as the district court aptly put it, “so

convincing that [we] would be willing to rely and act on it without hesitation in the

most important of [our] own affairs.” I am so convinced. Here’s why.

B. The Limited Information Before the District Court Clearly Did Not
Exclude a Reasonable Doubt.
Our precedent requires us to evaluate whether a substantial possibility

existed that Juror No. 13 could base his decision on the evidence. And when a juror

speaks “in terms of the evidence” in explaining his position, “we cannot say that it

is beyond doubt that [the juror’s] position during deliberations was the result of his

defiant unwillingness to apply the law, as opposed to his reservations about the

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sufficiency of the Government’s case.” Thomas, 116 F.3d at 624; accord Brown,

823 F.2d at 597. The record establishes that Juror No. 13 repeatedly referenced the

evidence in explaining his deliberative process, but the majority ignores those

references and repeatedly misrepresents Juror No. 13’s position as being

“irrespective of the evidence.” See, e.g., Majority Op. at 2–4, 27, 31–33, 38, 43.

On the evening of the second day of jury deliberations, Juror No. 8

expressed a concern to the courtroom deputy about another juror who was “talking

about ‘higher beings.’” As the district court later recounted, Juror No. 8 “said that

she was calling on her own behalf, but thought that other jurors were concerned as

well.” The deputy stopped her, told her that she should not discuss the

deliberations, but promised to bring the matter to the district court’s attention.

The next morning, the district court conferred with the parties about how to

proceed. At first, the district court was hesitant to interview any juror. It observed

that the jury had “been diligent, that the deliberations ha[d] been progressing

smoothly,” with “no indication of problems in their deliberations, which

distinguishe[d] [the situation] quite a bit from” our precedents involving juror

misconduct. It pointed out that in “all of those cases, really, there was much more

information that the court had” and “much more tangible evidence of a real

problem in the deliberations.” But, at the parties’ insistence, the district court

“reluctantly” agreed to interview Juror No. 8.

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The district court told Juror No. 8 that she should not reveal her own or any

other juror’s opinions or deliberations but asked her to explain her “concerns” “in

[her] own words.” Juror No. 8 clarified that “[i]t was just the one concern,”

identified Juror No. 13 as the subject of her concern, and offered the district court a

letter she had written in case she did not have a chance to call the deputy. The

district court and the parties examined the letter, which read as follows:

Your Honor
With all due respect, I’m a little concerned about a statement made by
Juror #13 when we began deliberation. He said “A Higher Being told
me Corrine Brown was Not Guilty on all charges”. He later went on to
say he “trusted the Holy Ghost”. We all asked that he base his verdict
on the evidence provided, the testimony of the witnesses and the laws
of the United States court. Other members of the Jury share my concern.
Thank You,
[Name Redacted], Juror #8

Juror No. 8 confirmed that the letter expressed “the sum and substance” of

her concern; as she put it, she “was just concerned about those comments.” While

the letter circulated among counsel, the district court asked Juror No. 8 when Juror

No. 13 had made the comments. She said that the “[t]he first one was when we first

went into deliberation,” “[a]nd the second one, shortly after, maybe within a few

hours after.” Later, she repeated the same timeline.

Through a series of questions, the district court tried to determine the effect

of the comments on the jury’s deliberations:

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THE COURT: Has this juror expressed that view again?
JUROR [No. 8]: No, sir.
THE COURT: To your observation, has that juror been deliberating?
JUROR [No. 8]: Yes.
THE COURT: Is there anything about the situation as it stands right
now that’s interfering with your ability to deliberate in the way that the
court has directed in the instructions?
JUROR [No. 8]: No, sir. Not at all. I was more concerned that it was
going to interfere in his ability to do that.
...
THE COURT: . . . [H]as this juror repeated that comment or anything
similar to that since then?
JUROR [No. 8]: No, sir, but other jurors have.
THE COURT: I don’t know what you mean by that.
JUROR [No. 8]: Some of the jurors are concerned that that’s affecting
his—his decision.

The district court paused to ask if the parties thought it should ask anything

else. After taking suggestions from Brown’s counsel, it asked whether Juror No. 8

had decided to call the deputy on her own. She confirmed she had, adding that she

did not “think any of [the other jurors were] even aware that” she had done so.

And, when the district court asked her to clarify whether the other jurors had

expressed their concerns during or outside of deliberations, she said “[i]t was all

in—during deliberations . . . [w]ith [Juror No. 13] present.”

The interview, which ended there, produced limited information about Juror

No. 13’s possible misconduct. Although Juror No. 8 voiced general expressions of

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“concern” about Juror No. 13’s comments, she did not say that Juror No. 13 was

ignoring the law or the evidence, refusing to deliberate, or obstructing the jury’s

deliberation in any way. On the contrary, she said—without qualification and

contrary to the majority’s description, Majority Op. at 24–25, 34—that Juror No.

13 was deliberating, and she confirmed that nothing was “interfering with [her]

ability to deliberate.” Although she then clarified that she “was more concerned

that it was going to interfere in [Juror No. 13’s] ability to do that,” she did not

opine that anything was interfering with his deliberations. Indeed, she strongly

suggested that her concern was based solely on the initial comments from the first

day (“I was just concerned about those comments”), not on any concrete problems

that had arisen since then regarding Juror No. 13’s willingness or ability to

deliberate about the evidence. And the district court did not inquire into the context

of Juror No. 13’s statements or how he had responded to the other jurors’

expressions of concern. After the interview of Juror No. 8, the government

suggested that the district court “inquire with the foreperson in camera to ask if

[Juror No. 8’s] view [was] shared by the foreperson or any of the other jurors,”

while Brown’s counsel thought the district court could stop his investigation.

Instead, the district court decided to interview Juror No. 13. Although the parties

did not favor that course, they agreed that the interview should “go from general to

more specific.”

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The district court’s first interview with Juror No. 13 certainly failed to bring

compelling proof of misconduct to light. Indeed, in describing his deliberative

process, Juror No. 13 spoke in terms of the evidence presented. The district court

asked him whether he was “having any difficulties with any religious or moral

beliefs . . . interfering with [his] ability to decide the case on the facts presented

and on the law as [instructed].” He replied, “No, sir.” The district court asked him

whether he “consider[ed] [him]self to have been deliberating with [the] other jurors

according to the law [as instructed].” His initial response—“We have been going

over all the individual numbers, as far as . . .”—appeared to be so specific about

the content of deliberations that the district court felt obliged to cut him off. When

the district court clarified that it wanted only a general answer, Juror No. 13 said,

“I’ve been following and listening to what has been presented and making a

determination from that, as to what I think and believe.” Those words were his

own, and they did not track the language of any question he had been asked up to

that point.

The district court told Juror No. 13 that it was going to “get a little more

specific with [him].” It did so:

THE COURT: Okay. That’s fine. So let me get a little more specific
with you. Have you expressed to any of your fellow jurors any religious
sentiment, to the effect that a higher being is telling you how—is
guiding you on these—on these decisions, or that you are trusting in
your religion to—to base your decisions on? Have you made any—can

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you think of any kind of statements that you may have made to any of
your fellow jurors along those lines?
JUROR [No. 13]: I did, yes.
THE COURT: Okay. Can you tell me, as best you can, what you said?
JUROR [No. 13]: Absolutely. I told them that in all of this, in listening
to all the information, taking it all down, I listen for the truth, and I
know the truth when the truth is spoken. So I expressed that to them,
and how I came to that conclusion.
THE COURT: Okay. And in doing so, have you invoked a higher
power or a higher being? I mean, have you used those terms to them in
expressing yourself?
JUROR [No. 13]: Absolutely. I told—I told them that—that I prayed
about this, I have looked at the information, and that I received
information as to what I was told to do in relation to what I heard here
today—or this past two weeks.
THE COURT: Sure. When you say you received information, from
what source? I mean, are you saying you received information from—
JUROR [No. 13]: My Father in Heaven.
THE COURT: Okay. Is it a fair statement—I don’t want to put words
in your mouth. But are you saying that you have prayed about this and
that you have received guidance from the Father in Heaven about how
you should proceed?
JUROR [No. 13]: Since we’ve been here, sir.

Let’s pause to examine this exchange. The district court broke off its first

question several times, unsure exactly what it wanted to ask Juror No. 13. Was it

that “a higher being [was] telling [him] how” to decide the case? That a higher

being was “guiding [him] . . . on these decisions”? Or was it “that [he was] trusting

in [his] religion . . . to base [his] decisions on”? The district court did not make

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clear what differences of meaning, if any, these various tentative formulations were

meant to convey. Nor did it make clear which of them it was sticking with when at

last it asked Juror No. 13, capaciously, whether he had made “any kind of

statements . . . along those lines.”

To this ambiguous question, Juror No. 13 replied in the affirmative. When

asked what he had said, he said he had explained to the other jurors his thought

processes (“how I came to [my] conclusion”) in determining what parts of the

evidence he believed were credible (“listen[ing] for the truth,” “know[ing] the truth

when the truth is spoken”) after having paid attention to the evidence presented at

trial (“listening to all the information, taking it all down”). And, when asked

specifically whether he had referred to “a higher power or a higher being,” Juror

No. 13 said he had told the other jurors “that [he] prayed about this, [he] ha[d]

looked at the information, and that [he] received information as to what [he] was

told to do in relation to what [he] heard here . . . this past two weeks.” In other

words, he used his own language to describe precisely the traditional role of a

juror—to listen to the evidence adduced at trial, find the required facts, apply the

law to those facts, and render a verdict based on those facts, see Gaudin, 515 U.S.

at 514–15. To say that Juror No. 13 made his decision “irrespective of the

evidence” is to ignore what Juror No. 13 said about both his decision and the

evidence. See Majority Op. at 2–4, 27, 31–33, 38, 43.

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At several points in its brief, the government echoes and emphasizes the

words “received information” to suggest that this answer established or at least

strongly suggested misconduct. Evidently persuaded by the government’s

repetition, the majority likewise stresses these words. See Majority Op. at 31–33.

But reading the answer as a whole and in context, I disagree.

Just before the supposedly damning words “received information,” Juror No.

13 stated that he had told his fellow jurors that he “ha[d] looked at the

information.” In the light of his previous answer, in which he also used the word

“information” to refer to the evidence presented at trial and his evaluation of the

evidence, that part of the sentence was clearly another reference to the evidence

and what he thought of it. And in the latter part of the sentence, just after the

supposedly damning words, Juror No. 13 said “that [he] received information as to

what [he] was told to do in relation to what [he] heard here”—that is, in the

courtroom—“this past two weeks”—that is, during the trial (emphasis added). Of

course, what Juror No. 13 had heard in the courtroom over the course of the trial

was the evidence, so the “information” he “received” was “in relation to” the

evidence.

It is hard to see how the words “received information,” sandwiched between

two references to Juror No. 13’s consideration and evaluation of the evidence,

prove beyond a reasonable doubt his inability to base his decision on the evidence.

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Indeed, the majority concedes that my reading “is certainly one reasonable

construction.” Majority Op. at 30–31 (emphasis added). That concession forecloses

any argument that the district court correctly applied our “tough” standard of

“beyond reasonable doubt.” Abbell, 271 F.3d at 1302. Under that standard, if Juror

No. 13’s statements can be “reconcile[d] . . . with any reasonable hypothesis

consistent with” proper jury service, then reasonable doubt existed, and the district

court was required to accept that understanding. Hopt, 120 U.S. at 441 (emphasis

added). And although Juror No. 13 couched the whole answer in extremely general

terms—possibly because the district court had made clear that it did not want to

hear details about the deliberations—“one reasonable construction,” if not the most

natural construction, from the answer as a whole is that Juror No. 13 had “prayed”

for and received guidance in evaluating “the information” that he had “heard [in

the courtroom]” over “th[e] past two weeks.”

The district court too seems to have understood the answer in that way,

contrary to the majority’s belief. The majority contends that because it was the

district court that first used the word “guidance,” Juror No. 13 did not himself

“characterize his religious inspiration as mere ‘guidance.’” Majority Op. at 33. But

when asking Juror No. 13 whether it was a “fair statement” to summarize his

communication with God as him “receiv[ing] guidance,” the district court was

asking whether it had correctly understood Juror No. 13’s representations of his

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relationship with God. And Juror No. 13 assented to that description of his

statement, adding, “[s]ince we’ve been here, sir.” The district court did not follow

up, at that time, with any more questions about either the content or the context of

Juror No. 13’s religious statements. The district court’s summary shows that it

understood Juror No. 13’s statements as expressing the belief that he had received

guidance in evaluating the evidence. So it does not matter that the district court

first used that exact phrasing, as that phrasing was premised on the district court’s

understanding of what Juror No. 13 conveyed about his communication with God.

And Juror No. 13 confirmed that the district court’s understanding was correct.

The district court then pivoted to a series of questions about Juror No. 13’s

understanding of his duty as a juror and whether he believed he was fulfilling his

obligations. In explaining how his religious beliefs informed his jury service, Juror

No. 13 appeared to be a diligent juror:

THE COURT: Do you view that in any way—as you know, when I
instructed you . . . you had told [the court] that you had no religious or
any—you did not have any religious or moral beliefs that would
preclude you from serving as a fair and impartial juror, nor did you have
any religious or moral beliefs that would preclude you from sitting in
judgment of another person. So you told [the court] that. And then you
also—of course, you heard my instruction, where you have to base your
decision only on the evidence presented during the trial and follow the
law as I explained it. Do you feel that you have been doing that?
JUROR [No. 13]: Yes, sir, I do.
THE COURT: Do you feel that there is any inconsistency in the prayer
that you’ve had or the guidance you’re receiving and your duty to base
your decision on the evidence and the law?

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JUROR [No. 13]: You said a few—you said a few things. Repeat,
please.
THE COURT: Do you feel that there’s any religious tension, or is your
religion and your obvious sincere religious beliefs—do you believe it
at all to be interfering with or impeding your ability to base your
decision solely on the evidence in the case and following the law that
I’ve explained to you?
JUROR [No. 13]: No, sir. I followed all the things that you presented.
My religious beliefs are going by the testimonies of people given here,
which I believe that’s what we’re supposed to do, and then render a
decision on those testimonies, and the evidence presented in the room.

After this exchange, the district court asked Juror No. 13 to retire to the jury room

for a moment.

I think it plain that Juror No. 13’s statements up to this point established

more than “a tangible possibility, not just a speculative hope,” that he was

behaving properly. Abbell, 271 F.3d at 1302 n.14. Juror No. 8 had provided, at

most, ambiguous information about Juror No. 13’s ability to deliberate and base

his verdict on the evidence, and Juror No. 13 unambiguously denied that his

religious beliefs prevented him from doing so. On the contrary, he repeatedly and

specifically affirmed—both in his own words and in the district court’s—that he

was basing his decision on the evidence. He explained that he had “been following

and listening to what ha[d] been presented and making a determination from that”;

that he had been “listening to all the information, taking it all down”; and that he

was “look[ing] at the information.”

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Juror No. 13’s most significant statement was this one: “My religious beliefs

are going by the testimonies of people given here, which I believe that’s what

we’re supposed to do, and then render a decision on those testimonies, and the

evidence presented in the room.” With this statement, Juror No. 13 drew a direct

and specific connection between his self-understood religious duty and his—

correctly described—legal duty as a juror to base his decision on the evidence.

“[W]e cannot say with any conviction that” Juror No. 13’s evaluation of Brown’s

guilt “stemmed from something other than” his view of the evidence, and “[g]iven

th[at] possibility . . . we must find that his dismissal violated [Brown’s] right to a

unanimous jury verdict.” Brown, 823 F.2d at 597; accord Abbell, 271 F.3d at

1302–03 & nn.14, 17; Thomas, 116 F.3d at 611, 623–24.

Provided the juror is telling the truth, it is hard to imagine what kind of

evidence could prove more convincingly that a deeply religious juror should not be

dismissed. After all, the original and traditional purpose of the juror’s oath, as of

all official oaths, is “to superadd a religious sanction to what would otherwise be

his official duty, and to bind his conscience” against misuse of his office. Ex parte

Milligan, 71 U.S. (4 Wall.) 2, 31 (1866) (David Dudley Field on the side of the

petitioner). Unless Juror No. 13 was dissembling when he said that his “religious

beliefs” required him to “go[] by the testimonies of people given here . . . and then

render a decision on those testimonies, and the evidence presented in the

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[court]room,” the district court must have erred when he dismissed him. Even the

majority acknowledges as much. Majority Op. at 40 (“There is certainly nothing

wrong with jurors choosing to pray for wisdom and guidance in adjudging the

evidence. But in our system, ultimately, jurors must root their verdicts in the

evidence and the court’s instructions on the law.”).

Although the majority ignores it, the district court even made a finding that

rules out the possibility that Juror No. 13 was dissembling. “Appellate courts

reviewing a cold record give particular deference to credibility determinations of a

fact-finder who had the opportunity to see live testimony,” Owens v. Wainwright,

698 F.2d 1111, 1113 (11th Cir. 1983), including “the demeanor of the pertinent

juror” in investigations of possible juror misconduct, Abbell, 271 F.3d at 1303.

When the district court explained its decision to dismiss Juror No. 13 to the parties,

it stressed that it found Juror No. 13 “very earnest” and “very sincere,” that it was

“sure” that Juror No. 13 “believe[d] that he [was] trying to follow the court’s

instructions,” and that it was also “sure” that Juror No. 13 “believe[d] that he [was]

rendering proper jury service.” When the district court explained its decision to

Juror No. 13, it told him, “I know you worked hard. I know you were sincere. . . .

I’m sorry that it has to be this way.” And, when the district court stood by its

decision in denying Brown’s motion for a new trial, it reiterated that its “colloquy

with Juror No. 13 revealed him to be sincere and earnest.”

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The district court stated, and the majority stresses, that Juror No. 13

appeared “hesitant at first to explain . . . how his religious views ha[d] come to the

fore during deliberations.” Majority Op. at 34–35 (alterations in original). But the

district court never explained which of Juror No. 13’s statements it was referencing

when it made that remark, and it certainly never suggested that Juror No. 13 was

dissembling. On the contrary, it thought Juror No. 13 “earnest[ly]” and

“sincere[ly]” “believe[d] that he [was] rendering proper jury service.” And it

“recognize[d] . . . that we’re not dealing with somebody who has specifically said

they won’t follow the law. In fact, Juror No. 13 has said he’s trying to do that and

is trying.” But it found that Juror No. 13’s belief that he had received divine

guidance made it impossible for him to do so. In other words, the district court

effectively found that Juror No. 13 was confused about what “proper jury service”

meant.

The problem with the majority accepting that finding is twofold. First, it is

clearly not supported beyond a reasonable doubt in the light of Juror No. 13’s

specific and repeated descriptions of what he thought he was doing: “following and

listening to what has been presented,” “making a determination from that,” “going

by the testimonies,” “and then render[ing] a decision on those testimonies, and the

evidence presented.” If Juror No. 13 was confused about his duties as a juror, he

had a strange way of showing it. Second—as I explain in detail in the next part—

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the district court’s belief that Juror No. 13 was confused rested on its own

confusion about proper jury service: namely, its mistaken view that Juror No. 13’s

reliance on and statements about divine guidance were disqualifying. Indeed,

immediately after its offhand and unexplained remark about Juror No. 13’s

“hesitan[ce],” the district court made clear that the juror’s dismissal was based on

the content of his statements: that “he [had] received information from a higher

source” and “that the Holy Spirit told him that Ms. Brown was not guilty on all

charges.”

After the initial interview, the district court asked Juror No. 13 only a few

more questions before deciding to dismiss him. The district court called him back

into the courtroom for this short follow-up interview:

THE COURT: If you could just have a seat again, sir. And I appreciate
your patience with us. And I—I want you to understand I am not
criticizing you or saying you did anything wrong. We’re just trying to
figure some things out here.
So what I want to ask you is a fairly direct question, and that is this:
Did you ever say to your fellow jurors or to a fellow juror during your—
during the time that y’all worked together, when the 12 started,
something to this effect, A higher being told me that Corrine Brown
was not guilty on all charges? Did you say something like that? Did you
say that or something like that to any of your fellow jurors?
JUROR [No. 13]: When we were giving why we were—insight, as far
as not guilty or whatever for the first charge, yes.
THE COURT: Did you say the words, A higher being told me that
Corrine Brown was not guilty on all charges?
JUROR [No. 13]: No. I said the Holy Spirit told me that.

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THE COURT: Okay. And you—and I don’t want to get into your
deliberations. But at what point in the deliberations was that? Was it at
the beginning? Was it early in the deliberations? When was it?
JUROR [No. 13]: I mentioned it in the very beginning when we were
on the first charge.

The district court did not ask Juror No. 13 about the second statement Juror

No. 8 had ascribed to him—that he “trusted the Holy Ghost”—and Juror No. 13

said nothing more until after his dismissal. The district court paused to confer with

the parties. In a sidebar conference, the government insisted that Juror No. 13’s

comments were disqualifying, but Brown’s counsel urged the district court to ask

the juror “if he[] [was] able to follow the court’s instructions and ha[d] he been

doing so.” The district court observed that it had already asked that question and

declined to ask anything else. It excused Juror No. 13 from the courtroom. After

discussion and a short recess, the district court announced its decision.

If any reasonable doubt already existed, this follow-up interview certainly

failed to lay it to rest. To start, it is unclear exactly what the follow-up interview

established about the content of Juror No. 13’s religious statements. The district

court’s first question was simultaneously leading and vague, asking only whether

Juror No. 13 had said something “to th[e] effect” of the statement Juror No. 8 had

reported. In his second question, the district court tried to ascertain Juror No. 13’s

exact words, but Juror No. 13 denied that he had used the exact words put to him.

He clarified that he had said “the Holy Spirit,” not “[a] higher being,” and he left

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unsaid whether the words of the question mirrored his exact language in other

respects. To be sure, he had the opportunity to clarify any other significant

differences, and he did not. But the district court had cut him off once before for

starting to share too much about what had been said in the jury room, and it was

clear that the district court was seeking direct yes-or-no answers. Cf. U.S. Gypsum

Co., 333 U.S. at 395–96 (discounting the significance of answers given to leading

questions on clear-error review).

That said, in my view, it makes no difference whether Juror No. 13 did or

did not say the exact words “the Holy Spirit told me that Corrine Brown was not

guilty on all charges,” so let’s assume he did. On this record—in the light of Juror

No. 13’s repeated, specific, and sincere assurances that he was basing his decision

on the evidence, just as his “religious beliefs” told him he was “supposed to do”; in

the light of Juror No. 8’s agreement that he was deliberating; and in the total

absence of any proof confirming misconduct—that statement alone clearly did not

establish beyond a reasonable doubt that he was unwilling or unable to perform his

duties as a juror.

More important than any uncertainty about Juror No. 13’s exact words is

how little the district court knew about the context of his statement about the Holy

Spirit. The majority contends that Juror No. 13, contrary to the district court’s

instructions, had irrevocably made up his mind before deliberations began, Majority

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Op. at 24–25, 31–33, but the record proves nothing of the kind. True, Juror No. 13

said that he referred to the Holy Spirit “in the very beginning when [the jury was] on

the first charge.” But the district court knew nothing else about the way the jury was

structuring its discussion, much less the immediate circumstances of Juror No. 13’s

statement. Without that necessary context, the district court could not draw any firm

conclusions from the timing or circumstances of the statement, nor can we. And the

majority’s inference that Juror No. 13 was unwilling to reconsider his position clearly

is not supported by the record beyond a reasonable doubt. If any proof of such

intransigence on his part existed, the district court failed to elicit it. Not even Juror

No. 8 opined that Juror No. 13 was disregarding the evidence or his fellow jurors’

arguments. But she did say that he was deliberating, and she voiced no concerns about

anything he had said on the second day.

If anything supports the majority’s inference, it must be Juror No. 13’s

religious language itself; that is, the majority must think that a juror who expresses

the belief that he has received divine guidance necessarily implies that he is

unwilling to consider his fellow jurors’ arguments with an open mind. So the

majority’s argument, at bottom, depends on a variant of the district court’s

misconception that the words “the Holy Spirit told me that Corrine Brown was not

guilty on all charges” amounted to facially conclusive proof of misconduct.

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That misconception, which the district court accepted at the insistence of the

government, was its central error. Because this point is so important and because

the majority embraces it, I explain it at length in the next part.

C. Juror No. 13’s Religious Statements Were Not Disqualifying.

What did Juror No. 13 mean when he said, “the Holy Spirit told me that

Corrine Brown was not guilty on all charges”? The majority, like the district court

before it, takes pains to distinguish a juror’s acceptable prayers for guidance from

the unacceptable thought process that it thinks Juror No. 13’s comments revealed.

Majority Op. at 3, 33–35, 40. Here’s how the district court tried to slice it when it

announced its decision:

I want to be very clear that I am drawing a distinction between someone
who’s on a jury who is religious and who is praying for guidance or
seeking inspiration, or whatever mode that person uses to try to come
to a proper decision, from this situation, where the juror is actually
saying that an outside force, that is, a higher being, a Holy Spirit, told
him that Ms. Brown was not guilty on those charges. And I think that’s
just an expression that’s a bridge too far, consistent with jury service as
we know it.

And, in the same discussion, the district court asserted that Juror No. 13’s

statement fell on the wrong side of this critical distinction “by definition”:

[A] juror who makes that statement to other jurors and introduces that
concept into the deliberations . . . is a juror that is injecting religious
beliefs that are inconsistent with the instructions of the court, that this
case be decided solely on the law as the court gave it to the jury and the
evidence in the case. Because, by definition, it’s not that the person is
praying for guidance so that the person can be enlightened, it’s that the
higher being—or the Holy Spirit is directing or telling the person what

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disposition of the charges should be made. And based upon my reading
of the case law in other cases where religious beliefs have caused a juror
to be struck, this statement by the juror . . . is a disqualifying statement
(emphasis added).

The majority similarly acknowledges that “there is certainly nothing wrong with

jurors choosing to pray for wisdom and guidance in adjudging the evidence,” but it

faults Juror No. 13 for believing God answered his prayer by giving him the

guidance he sought. Majority Op. at 40.

The district court’s and majority’s reactions to Juror No. 13’s religious

statements reflect three fundamental and related confusions. First, the district court

erroneously equated the divine guidance Juror No. 13 believed he had received

with “religious beliefs” that render a person unable to perform the duties of a juror.

Second, the district court erroneously conflated divine guidance with reliance on

“an outside force,” and the majority necessarily adopts that conflation by affirming

the dismissal of Juror No. 13. Third, the district court jumped to, and the majority

now adopts, the unwarranted conclusion that Juror No. 13’s comments “by

definition” meant that he was not basing his decision on the evidence. I explain

these errors in turn.

1. The District Court Erroneously Equated a Belief in Divine Guidance with
Disqualifying Religious Beliefs.

The district court compared Juror No. 13 with the jurors “in other cases

where religious beliefs have caused a juror to be struck,” but the difference

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between this appeal and those decisions is instructive. In Geffrard, for example, the

dismissed juror sent the district court a lengthy, combative letter explaining that,

“[b]ecause of [her] religious beliefs . . . in Swedenborgianism,” she “could not live

with a verdict of guilty for any of the accused on any of the charges, as [she]

believe[d] deep within [her] heart and soul and mind that they were [entrapped].”

87 F.3d at 451, 453. She also made clear that her religious beliefs made it

impossible for her to deliberate; in her words, “to discuss the teachings of Emanuel

Swedenborg with the other jurors in relation to this case . . . would be like

discussing the theory of relativity with my cocker spaniel dog.” Id. at 453. In Miles

v. United States, an appeal from a conviction for bigamy in the Utah Territory, the

Supreme Court approved the exclusion of prospective jurors who “believed that

polygamy was ordained of God, and that the practice of polygamy was obedience

to the will of God.” 103 U.S. 304, 310 (1880). And, in a recurring fact pattern,

federal courts have excluded, removed, or allowed strikes of jurors who made clear

that their religious belief that they must not judge others would conflict with jury

service. See, e.g., United States v. Whitfield, 590 F.3d 325, 360 (5th Cir. 2009);

United States v. Decoud, 456 F.3d 996, 1003, 1005, 1016–17 (9th Cir. 2006);

United States v. Burrous, 147 F.3d 111, 115, 117–18 (2d Cir. 1998); United States

v. Pappas, 639 F.2d 1, 3–4 (1st Cir. 1980).

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All of these decisions involved jurors whose religious beliefs—that is,

specific propositions of moral and theological doctrine—threatened to make it

impossible for them to return a verdict based on the application of the law to the

evidence, no matter what facts they found. See United States v. Stafford, 136 F.3d

1109, 1114 (7th Cir. 1998) (explaining that a prospective juror may be struck based

on “a belief that would prevent him from basing his decision on the evidence and

instructions,” like the belief “that crimes should be left entirely to the justice of

God”). But Juror No. 13 said the opposite. Beyond his denials that he held any

religious or moral beliefs that were interfering with his jury service, the record

contains only one other statement by Juror No. 13 describing the content of his

religious convictions: “My religious beliefs are going by the testimonies of people

given here, which I believe that’s what we’re supposed to do, and then render a

decision on those testimonies, and the evidence presented in the room.” In other

words, his “religious beliefs” required him to do his duty as a juror.

Instead of focusing on his “beliefs,” any justification for Juror No. 13’s

dismissal must be based on the conviction that he had reached his not-guilty vote

through an improper thought process. As everyone agrees, he was not subject to

dismissal if he was praying for guidance in reaching a decision based on the law

and the evidence. It should also be clear—and, if it is not, the next section will

make it so—that he was not subject to dismissal just because he thought he had

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received guidance in reaching a decision based on the law and the evidence. The

district court was right to dismiss Juror No. 13 only if he was basing his decision

on what he believed to be a private revelation from God that was independent of

the law and the evidence, and only then if his misconduct was apparent beyond a

reasonable doubt. By comparing Juror No. 13’s situation with Geffrard and other

decisions about disqualifying doctrinal commitments, the district court mistook the

nature of the inquiry.

2. The Majority Erroneously Affirms the District Court’s Conflation of
Divine Guidance with Outside Influence.

One persistent confusion that has plagued this appeal is the notion that a

juror’s belief that he has received divine guidance reflects a form of improper

outside influence. The district court repeatedly described the guidance Juror No. 13

thought he had received as an “outside instruction,” “instructions from an outside

source,” “an outside force,” an “external force[],”and even an “outside opinion[].”

And the majority reasons that Juror No. 13’s decision was based on outside

information—a “divine revelation”—instead of the evidence presented at trial. See

Majority Op. at 3–4, 27, 31–34.

This confusion cannot withstand scrutiny. Indeed, it betrays a failure to

reflect on the nature of prayer. Juror No. 13 sat through Brown’s trial. By his

account, he had “been following and listening to what ha[d] been presented” in

evidence, “taking it all down,” and “making a determination from that.” Nothing

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suggests that Juror No. 13 performed outside factual research or acquired any

factual information outside of the evidence presented at trial. When he heard what

he believed to be the Holy Spirit speaking to him in his mind and advising him

what “determination” he was to make, what “external force” can be said to have

influenced him? What exactly do the district court and the majority think was

happening if not the operation of an internal thought process?

Juror No. 13’s statement that God had communicated with him described an

internal mental event, not an external instruction. The anthropologist T.M.

Luhrmann, in an effort to describe the prayer life of American evangelicals in

secular language, writes that, “[i]n effect, [believers] train the mind in such a way

that they experience part of their mind as the presence of God. . . . They learn to

identify some thoughts as God’s voice, some images as God’s suggestions, some

sensations as God’s touch or the response to his nearness.” T.M. Luhrmann, When

God Talks Back: Understanding the American Evangelical Relationship with God

xxi (2012). But, ordinarily, they “still experience those thoughts and images and

sensations . . . as if they were [their] own, generated from within [their] own mind

and body.” Id. at 41. When believers converse with God in prayer, both their

addresses to him and his replies—if any—are “inner mental phenomena.” Id. at 47.

Religious believers themselves commonly think of God’s guidance less as

“an outward voice” than as “an inward whisper, a deep speaking into the heart, an

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interior knowing.” Richard J. Foster, Sanctuary of the Soul: Journey into

Meditative Prayer 11 (2011). From the religious point of view, Luhrmann’s secular

perspective is not inaccurate so much as merely incomplete, like the notions of the

blind men feeling the elephant in Saxe’s famous fable. See John Godfrey Saxe, The

Blind Men and the Elephant, in The Poems of John Godfrey Saxe 259, 259–61

(Bos., James R. Osgood & Co. 1873) (telling of six blind men who each tried to

describe an elephant after touching only one part of it and so provided six very

different descriptions of the same animal).

What distinguishes the religious-spiritual understanding of prayer from the

secular-psychological one is the premise that God is present, at least potentially, in

the deepest recesses of the human heart and mind. Saint Augustine wrote,

addressing God, “Thou wert more inward to me than my most inward part.” St.

Augustine, The Confessions III.VI.11, at 46 (J.G. Pilkington trans., Edinburgh, T.

& T. Clark 1876). This assertion was no mere literary device. It expressed a

metaphysical belief in God’s immanence that is common to spiritual writers

throughout time and across religious traditions. See, e.g., 1 Corinthians 3:16 (King

James) (“Know ye not that ye are the temple of God, and that the Spirit of God

dwelleth in you?”); Thomas Merton, Zen and the Birds of Appetite 24 (1968) (“The

self is not its own center and does not orbit around itself; it is centered on God, the

one center of all, which is ‘everywhere and nowhere,’ in whom all are

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encountered, from whom all proceed.”); Gershom Scholem, On the Kabbalah and

Its Symbolism 94 (Ralph Manheim trans., Schocken Books 1996) (1960) (equating

“the concept of the one God” in Jewish mysticism with “what is revealed in the

fulness of man’s inwardness”); Marmaduke Pickthall, The Meaning of the Glorious

Koran: An Explanatory Translation 57:3, at 565 (1930) (“He is the First and the

Last, and the Outward and the Inward . . . .” (emphasis added)); Swami

Vivekananda, The Absolute and Manifestation (1896), in 2 The Complete Works of

Swami Vivekananda 130, 141 (14th ed. 1958) (“He is the nearest of the near.”);

Martin Luther, Exposition of the Fifty-First Psalm, in 1 Select Works of Martin

Luther 51, 153 (Henry Cole trans., London, W. Simpkin & R. Marshall 1826)

(“The true Spirit, therefore, dwells in those who believe, not merely as to his gifts,

but as to his substance.”); Selected Poems from the Dīvāni Shamsi Tabrīz 73

(Reynold A. Nicholson ed. & trans., 4th ed. 2004) (1898) (“I gazed into my own

heart; / There I saw Him; He was nowhere else.”); cf. Hakuun Yasutani, Yasutani-

roshi’s Introductory Lectures on Zen Training, in The Three Pillars of Zen 3, 64

(Philip Kapleau ed., 35th anniv. ed. 2000) (1965) (“Just as [one is] never without

[one’s] head, so are we never separate from our essential Buddha-nature whether

we are enlightened or not.”). Through prayer, spiritual practitioners connect with

the divine reality present within them. See William Law, The Spirit of Prayer 31

(AGES Dig. Lib. Collections 1997) (1749) (“For this turning to the Light and

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Spirit of God within thee, is thy only true turning unto God, there is no other way

of finding him, but in that place where he dwelleth in thee.”).

One common goal of prayer is to attune the mind to receive God’s internal

guidance. See, e.g., Thomas à Kempis, The Imitation of Christ 77 (Richard

Challoner trans., TAN Books 2013) (c.1418) (“I WILL hear what the Lord God

will speak in me. . . . Blessed is that soul which heareth the Lord speaking within

her . . . . Blessed ears indeed, which hearken to truth itself teaching within . . . .”).

After all, a basic tenet of theistic religion is that God assists those who rely on him

in their difficulties, strengthening them in both intellectual and practical virtues.

See, e.g., Psalm 54:4 (King James) (“Behold, God is mine helper.”); Proverbs 3:5–

6 (King James) (“Trust in the LORD with all thine heart; and lean not unto thine

own understanding. In all thy ways acknowledge him, and he shall direct thy

paths.”); Ezekiel 36:27 (King James) (“I will put my spirit within you, and cause

you to walk in my statutes . . . .”). In the Christian tradition, the Holy Spirit is

often, though not always, the divine person to whom such help is attributed. See,

e.g., Romans 8:9 (King James) (“[Y]e are not in the flesh, but in the Spirit, if so be

that the Spirit of God dwell in you.”); Galatians 5:22–23, 25 (King James)

(identifying several virtues as “the fruit of the Spirit” and exhorting believers to

“walk in the Spirit”); Catechism of the Catholic Church ¶ 1266, at 354 (Image

Books 1995) (“The Most Holy Trinity gives the baptized . . . the power to live and

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act under the prompting of the Holy Spirit through the gifts of the Holy Spirit

. . . .”). Indeed, one of the biblical titles of the Holy Spirit, “paraclete,” is

sometimes translated “helper.” See J.F. Sollier, Paraclete, 11 The Catholic

Encyclopedia 469 (Charles G. Herbermann et al. eds., 1913); see also id.

(discussing “the Holy Ghost’s inhabitation in the soul of the just” and explaining

that the soul “becomes the habitation of the three Persons of the Blessed Trinity”

through the “indwelling of the Paraclete”).

To understand that prayer is an internal process requires no special

theological training. One of Luhrmann’s evangelical acquaintances, a young

woman named Hannah, described her prayer experiences this way: “I’m asking my

unconscious—which is really the Holy Spirit—‘What do you think about this

idea?’ And I recognize that it’s not me, but God inside me, that I’m having a

conversation with.” Luhrmann, When God Talks Back, supra at 83. Although Saint

Augustine might not have recognized the concept of the unconscious—a

development of nineteenth- and twentieth-century psychology, see Sebastian

Gardner, The Unconscious Mind, in The Cambridge History of Philosophy 1870–

1945, at 107, 107–09 (Thomas Baldwin ed., 2003)—the basic meaning of

Hannah’s account would have made perfect sense to him. And I suspect it would

have made sense to Juror No. 13 too.

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Jurors are “expected to speak, debate, argue, and make decisions the way

ordinary people do in their daily lives.” Pena-Rodriguez, 137 S. Ct. at 874 (Alito,

J., dissenting). For religious believers, prayer and reliance on God can be

inseparable from their everyday “way of thinking, speaking, and deciding.” Id.; see

also State v. DeMille, 756 P.2d 81, 84 (Utah 1988) (“Prayer is . . . certainly a part

of the personal decision-making process of many people, a process that is

employed when serving on a jury.”).

American courts have rightly rejected arguments that it is inherently

improper for jurors in a criminal trial to turn to prayer as part of their deliberations.

See, e.g., State v. Williams, 832 N.E.2d 783, 790 (Ohio Ct. App. 2005) (“[T]he

mere fact that a jury or jurors have participated in prayer does not, absent evidence

that the prayer rendered the juror or jurors incapable of making an unbiased

decision, substantiate a due process violation.”). Provided that they follow the

court’s instructions, jurors may pray for guidance alone, see State v. Young, 710

N.W.2d 272, 283 (Minn. 2006); in small groups, see State v. Elliott, 628 S.E.2d

735, 747–48 (N.C. 2006); or as a body, see Commonwealth v. Tedford, 960 A.2d 1,

38–40 (Pa. 2008). They may pray for God’s guidance at the outset of deliberations,

see State v. Setzer, 36 P.3d 829, 832 (Idaho Ct. App. 2001); they may seek it again

day by day as deliberations continue, see State v. Graham, 422 So. 2d 123, 135–36

(La. 1982); and they may ask God to confirm their consciences once they have

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reached a decision, see Smith v. State, 877 So. 2d 369, 383 (Miss. 2004). The

Supreme Court of California, for example, found no error in “[t]he fact that some

jurors expressed their religious beliefs or held hands and prayed during

deliberations” in the sentencing phase of a capital trial; the court recognized the

jurors’ “need to reconcile the difficult decision—possibly sentencing a person to

death—with their religious beliefs and personal views.” People v. Lewis, 28 P.3d

34, 73 (Cal. 2001). And the Oklahoma Criminal Court of Appeals has eloquently

explained why believers would find it natural to pray in the guilt phase too:

The function of the jury was to ferret out from the evidence produced
the truth of the matters then under study, as best they might. They had
the instructions of the court as to the law of the case. But their great
problem was in determining and evaluating the facts from what they
had before them. There was need that their minds, their every faculty,
should function at the highest efficiency. Surely a mind turned in
humility and love toward the Creator would come nearer being freed
from prejudice and function with greater deliberation than otherwise
would be the case.

Fields v. State, 284 P.2d 442, 454 (Okla. Crim. App. 1955). To paraphrase the

Fields court only slightly by using Juror No. 13’s own words, religious jurors often

pray for guidance “in listening to all the information, taking it all down, . . .

listen[ing] for the truth, . . . know[ing] the truth when the truth is spoken,” and

“making a determination from that.”

Of course, if religious jurors may pray for God’s guidance, it follows that

they must be entitled to receive God’s guidance, or at least to believe that they

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have received it. The majority faults Juror No. 13 for believing that he “received

information from his Father in Heaven.” Majority Op. at 30–31 (alterations and

internal quotation marks omitted). But every prayer implies a hope that the prayer

be answered. See Matthew 7:7 (King James) (“Ask, and it shall be given you; seek,

and ye shall find; knock, and it shall be opened unto you.”); id. 21:22 (King James)

(“[A]ll things, whatsoever ye shall ask in prayer, believing, ye shall receive.”). A

prayer for guidance implies a hope that guidance will come. See Foster, Sanctuary

of the Soul, supra at 20 (underlining “hearing and obeying” as important elements

of prayer). And a religious juror who “solemnly swears,” as Juror No. 13 did, to

“render a true verdict, according to the law, evidence, and instructions of th[e]

court, so help [me] God,” must be entitled to believe that God truly helps him to

fulfill his oath. Indeed, for religious believers, to invoke the name of God without

meaning it would be immoral. See Exodus 20:7 (King James) (commanding

“[t]hou shalt not take the name of the LORD thy God in vain”); see also Catechism

of the Catholic Church ¶¶ 2149–2155, at 576–78 (explaining that false or lightly

taken oaths violate the commandment); Wayne Gruden, Systematic Theology 387

(1994) (“[W]e cannot fool God.”).

For a juror to receive and rely on divine guidance is not misconduct. When a

conscientious juror asks God in prayer to assist her and believes that she has

received his assistance, she has not taken instructions from an outside source. She

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has not performed the supernatural equivalent of a Google search. She has not

made the Omniscient her own private eye to dig up additional evidence for or

against the defendant. All she has done is to seek clarity of mind, insight, and

discernment from that interior place where her conscious mind makes contact with

what she believes is the divine. As long as the object of her prayers is an honest

attempt to discern the facts from the evidence and to apply the law to those facts,

the prayerful meditations of such a juror are no less valid a form of deliberation

than any other.

On the flip side, of course, a juror who refuses or is unable to apply the law

to the evidence for a spiritual reason is no less subject to dismissal than a juror who

does the same thing for a secular reason. When it is apparent beyond a reasonable

doubt that “‘religious inspiration’ prevent[s] [a] juror from considering the

evidence at all,” United States v. Salvador, 740 F.2d 752, 755 (9th Cir. 1984), that

juror may be dismissed, just like a juror who refuses to deliberate for any other

reason. And when it is apparent beyond a reasonable doubt that a juror has

“abandon[ed] his or her judgment [about the evidence] to what he or she perceives

to be oracular signs,” DeMille, 756 P.2d at 84, that juror may be dismissed, just

like a juror who decides to base her vote on any other nonevidential event, like the

weather or the outcome of a coin flip.

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Indeed, as these examples suggest, the notion that religion poses a unique

problem in the context of juror-misconduct investigations is unfounded. Whenever

a juror’s thought process is put in question, whether he expresses himself in

religious language or in secular terms, the crux of the issue is the same: Is the juror

making an honest attempt to determine the facts proved by the evidence and to

apply the law to those facts? Or is he basing his decision on whim, bias, random

chance, or some other arbitrary criterion? In the former case, the juror’s promise

not to rely on outside information does not bar him from appealing to his God for

help. And, in the latter case, an arbitrary secular juror and an arbitrary religious

juror are two peas in the same pod.

The majority, like the district court, acknowledges the propriety of a juror’s

prayers for guidance. Majority Op. at 40. But, like the district court, it thinks that

something about Juror No. 13’s statements crossed a line. I have explained that the

problem cannot be that Juror No. 13 relied on “an outside source.” I next explain

that the facial content of Juror No. 13’s statements did not prove an unacceptable

thought process.

3. The Majority Errs By Adopting the District Court’s Unwarranted
Conclusion that Juror No. 13’s Statements Were Unacceptable “By
Definition.”
The majority has erroneously latched on to the district court’s determination

that Juror No. 13’s language—that is, his statement that “the Holy Spirit told [him]

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that Corrine Brown was not guilty on all charges”—was facially conclusive proof

that he was failing to discharge his duties. See Majority Op. at 31–35. The district

court reasoned that, “by definition, [the statement is] not that the person is praying

for guidance so that the person can be enlightened, it’s that the higher being . . . or

the Holy Spirit is directing or telling the person what disposition of the charges

should be made.” But Juror No. 13’s statement did not prove “by definition” that

his thought processes were improper.

The district court did not clarify exactly why it believed that Juror No. 13’s

comment reflected an improper thought process “by definition,” but its reasoning

suggests two possibilities. First, the district court may have found it troubling that

the guidance Juror No. 13 thought he had received was dispositive, that is, it told

him “what disposition of the charges should be made.” Indeed, that possibility

seems to be what troubles the majority the most. See, e.g., Majority Op. at 33

(“Juror 13’s self-worded responses to the court’s open-ended questions

consistently characterized the message he believed he received as a directive or

conclusion.”). But if jurors are entitled to think they have received divine guidance

in weighing the evidence—and they are—they must also be entitled to think they

have received clear guidance. There would be no sense in a rule limiting a juror’s

reliance on God to reliance only on his murkier signals, nor could courts draw any

principled line to enforce such a rule. Of course, whatever guidance a juror thinks

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he has received from God does not remove his duty to reach a decision based on

the evidence after good-faith deliberations with his fellow jurors. The juror in

Salvador, who stopped deliberating because he believed that God had given him

the right answer, was in the wrong. See 740 F.2d at 754–55. But Juror No. 13 was

deliberating, and he told the district court time and time again that he was basing

his decision on the evidence. Provided that he was doing so, it makes no difference

how clear he believed God’s guidance had been.

Indeed, it would be ironic to fault Juror No. 13 for meaningfully relying on

God’s guidance when the district court itself invoked the assistance of God. Every

juror in Brown’s trial swore to faithfully fulfill their duties using an oath that ended

with “so help you God.” In framing the oath this way, the court adhered to an

ancient tradition of ensuring honesty by invoking supernatural sanction on those

who swear a false oath. See Thomas R. White, Oaths in Judicial Proceedings and

Their Effect Upon the Competency of Witnesses, 51 Am. L. Reg. 373, 374–76 &

n.3 (1903); see also 1 William Blackstone, Commentaries *369 (stating that oaths

are a well-established practice that strengthened the social obligation of truth “by

uniting it with that of religion”). Indeed, the phrase “[so] help me God” invokes

“God’s vengeance” when a juror does not “fulfil [his] engagement to speak the

truth, or perform the specific duty.” James E. Tyler, Oaths; Their Origin, Nature,

and History 57 (London, John W. Parker 1884); accord White, Oaths in Judicial

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Proceedings, supra, at 380 n.10 (stating that “So help me God” is shorthand for

“So may God help me at the judgment day if I speak true, but if I speak false, then

may He withdraw His help from me” (internal quotation marks omitted)); Pierce v.

Commonwealth, 408 S.W.2d 187, 188 (Ky. 1966) (observing that “the use of the

words ‘So help me God’ in the juror’s oath” means that “the juror will, as God is

his witness, decide the issues according to the evidence”). And “so help me God”

remains a staple of jury oaths in federal courts today. See Fed. Judicial Ctr.,

Benchbook for U.S. District Judges § 7.08, at 269 (6th ed. 2013); see also 28

U.S.C. § 453 (requiring justices and judges to take an oath of office that includes

“So help me God”). If courts can invoke God’s damnation to ensure faithful juries,

then surely individual jurors can rely on divine aid to avoid that fate.

Second, the district court and majority may have drawn an unfavorable

inference about Juror No. 13’s mental processes based on the vividness and

directness of his religious language. Undoubtedly, even many devout religious

believers would stumble over the words “the Holy Spirit told me . . .” or “I

received information from my Father in Heaven.” And even many people of faith

are unused to hearing such expressions in the mouths of others.

But Juror No. 13’s idiom was not sufficient proof of misconduct. After all,

people talk about religion in different ways. And for many contemporary

Americans, to call prayer a conversation with God is more than a metaphor. A

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recent study by the Pew Research Center found that 74 percent of survey

respondents said they try to talk to God or a higher power. Pew Research Ctr.,

When Americans Say They Believe in God, What Do They Mean? 27 (2018). And

about a third as many—28 percent of respondents—said that God or a higher

power talks directly to them. Id.; see also id. at 4 (noting that 80 percent of

American adults believe in God, while an additional nine percent believe in some

higher power or spiritual force).

The gap between those figures is illuminating. Most believers do not say that

God talks to them directly. They believe that he affects their lives in other ways—

for example, three in four American adults say that God has protected them, and

nearly half believe that he “directly determines what happens in their lives all or

most of the time,” id. at 6, 28, 31—but their relationship with God, as they

understand it, does not include direct personal communication from God to them,

at least not of the kind they would call “talking.” Yet a substantial fraction of

American adults believes and is willing to say that God does talk to them directly.

This is no fringe phenomenon. That 28 percent of American adults includes about

one in four men, one in three women, one in four college graduates, one in three

Republicans or Republican-leaners, and one in four Democrats or Democratic-

leaners. Id. at 27.

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Members of some religious groups are more likely than others to report two-

way communication with God, underscoring that different people are used to

thinking and talking about their prayer life in different ways. Sixty-three percent of

Jewish Americans say that they talk to God, but only nine percent report that he

talks back to them. Id. Large majorities of Catholics and mainline Protestants say

that they talk to God, but only about a quarter say that God talks directly to them.

Id. “Communicating with God is most common among evangelical Protestants and

those in the historically black Protestant tradition, with nearly everyone in both

groups saying they talk to God. Six-in-ten people in the historically black

Protestant tradition say this communication is a two-way street,” making them the

only group with a majority saying so. Id. Among evangelicals, 45 percent of

respondents said that God speaks to them directly. Id.

In our culturally and religiously diverse nation, such differences are not

surprising. As Luhrmann observes, “[i]f the supernatural is real, it reaches to each

according to that person’s skills and style.” Luhrmann, When God Talks Back,

supra at 222. Another, more mundane explanation is that what Luhrmann calls

different people’s “social worlds”—the background assumptions embedded in their

communities and ways of living—shape their expectations of and their ways of

talking about religious experience. Compare id. at 219 (“There are social worlds in

which the dead are known to be present and in which experts have direct,

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unmediated access to the supernatural, and in those worlds, visions and voices are

normative.”), with id. at 319 (“Christians in . . . early-twenty-first century America

. . . live in a world in which it is entirely possible to take for granted that talk of the

supernatural is bunk. That is what is modern.”), and id. at 322 (“Insoo Kim [an

evangelical pastor] believes in his God. But he cannot escape his doubt. It is part of

his social world.”). And “[o]nly some religious communities encourage people to

pay attention to their subjective states with the suggestion that God may speak

back to them in prayer.” Id. at xxiv. For obvious reasons, members of those

communities are more likely to hold the conviction that God’s voice may be no

farther from them than their next thought.

Take Luhrmann’s evangelicals. They practice a faith “in which God is

thought to be present as a person in someone’s everyday life, and in which God’s

supernatural power is thought to be immediately accessible by that person.” Id. at

xix. “These Christians speak as if God interacts with them like a friend. He speaks

to them. He listens to them. He acts when they pray to him about little mundane

things, because he cares.” Id. Although “[t]his kind of Christianity [can] seem[]

almost absurdly vivid to someone who grew up in a mainstream Protestant

church”—or, for that matter, other traditions—it is as familiar to millions of

Americans as water is to a fish. Id.

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That large numbers of Americans believe they experience God’s guidance in

the form of direct personal communication should not and does not disqualify them

from jury service. Juries are supposed to be “selected at random from a fair cross

section of the community in the district or division wherein the court convenes.”

28 U.S.C. § 1861; see also Taylor v. Louisiana, 419 U.S. 522, 530 (1975). Based

on the Pew findings, the probability that a randomly selected group of 12

American adults will include at least one person who believes and is willing to say

that God talks to him directly is slightly higher than 98 percent. In locales where

the community is more religious than the national average, or where churches that

stress the interior experience of God are especially prevalent, that likelihood that

every jury includes at least one such person is even closer to a virtual certainty. My

guess is that there are places in this Circuit where it would be easier to fill a jury

with 12 people all of whom believe that God speaks to them directly than with 12

people none of whom does.

When a juror is suspected of misconduct based on his way of talking about

prayer, Abbell’s admonition that “judges must be careful not to dismiss jurors too

lightly” requires attention to two distinct dangers. 271 F.3d at 1302. The first is the

danger that other jurors might have misinterpreted the suspect juror’s remarks. Our

nation’s religious diversity carries the risk of misunderstanding between people of

different worldviews and from different walks of life. See, e.g., Jonathan Merritt,

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It’s Getting Harder to Talk About God, N.Y. Times (Oct. 13, 2018), https://www.

nytimes.com/2018/10/13/opinion/sunday/talk-god-sprituality-christian.html; Leah

Libresco, When Does Praying in Public Make Others Uncomfortable?,

FiveThirtyEight (Sept. 16, 2016, 11:03 AM), https://fivethirtyeight.com/features

/when-does-praying-in-public-make-others-uncomfortable/. That risk extends to

the jury room. Jurors who “treat God like a cozy confidant and call a near-tangible

Holy Spirit into their presence,” Luhrmann, When God Talks Back, supra at 15,

may speak and deliberate in ways that their secular or more spiritually staid co-

jurors find hard to understand or downright weird. Cf. id. at 39 (describing how

congregants at one church in Chicago “talk about things God has ‘said’ to them

about very specific topics—where they should go to school and whether they

should volunteer in a day care—and newcomers are often confused by what they

mean”).

The second risk is the danger that judges might misinterpret religious

language. After all, “the Federal Judiciary is hardly a cross-section of America.”

Obergefell v. Hodges, 135 S. Ct. 2584, 2629 (2015) (Scalia, J., dissenting).

Although federal judges are diverse in many ways, we have a few important traits

in common as a class. Before we become lawyers, we spend longer than most

Americans in the mostly secular world of postsecondary education. See generally

George M. Marsden, The Soul of the American University: From Protestant

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Establishment to Established Nonbelief (1994). Afterward, we spend our

professional lives immersed in another secular culture—the culture of legal

discourse—that often struggles to understand religious practice or to take religious

perspectives seriously. See generally Stephen L. Carter, The Culture of Disbelief:

How American Law and Politics Trivialize Religious Devotion (1993); Richard

John Neuhaus, The Naked Public Square: Religion and Democracy in America

(1984). And, thanks to our elite position, even the religious among us are likely to

be more familiar with certain forms of religious experience and religious language

than with others. Cf. Pew Research Center, When Americans Say They Believe in

God, supra at 23, 27 (reporting that college graduates are less likely than others to

say that they “believe in God as described in the Bible” or that God talks directly

to them); Obergefell, 135 S. Ct. at 2629 (Scalia, J., dissenting) (observing the

absence of “a single evangelical Christian” on the “select, patrician, highly

unrepresentative panel of nine” that is the Supreme Court).

In short, there is good reason to worry that members of our credentialed

judicial elite, even with the best intentions, may not be ideally equipped to infer at

once the true nature of a juror’s thought process from the face of his statements

about prayer. And when our decisions bear directly on “[t]he jury trial right [that]

protects [defendants] from being judged by a special class of trained

professionals,” we must take particular care lest our distance from “the language of

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ordinary people” lead us to make inferences stronger than a juror’s language

warrants. Pena-Rodriguez, 137 S. Ct. at 874–75 (Alito, J., dissenting).

In Brown’s trial, to all appearances, Juror No. 13’s religious language did

not cause a total breakdown of communication with his fellow jurors. According to

Juror No. 8, Juror No. 13 used religious language twice near the start of

deliberations, some other jurors were concerned, they asked him to make sure he

was basing his decision on the evidence, he continued to deliberate, he did not use

religious language again, and only one juror raised any concern with the district

court. Juror No. 8 never said that Juror No. 13 was ignoring the evidence or

refusing to apply the law. Her story, as we know it, has plenty of blanks.

One plausible version with the blanks filled in goes like this: Juror No. 13

prayed about the evidence and thought he received guidance that it was insufficient

to convict Brown; he twice told his fellow jurors as much using religious language

that seemed natural to him; he realized that his religious language was an obstacle

to communicating with some of his fellow jurors, so he stopped using it; and he

continued to discuss the evidence with them using secular language. All the same,

one juror saw fit to bring her concern to the attention of the district court, her

concern was enough to prompt the district court to investigate Juror No. 13’s

religious statements, and one of his statements was enough to persuade the district

court that he should be dismissed.

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But that statement was not enough to justify his dismissal. If the district

court could “reconcile the evidence with any reasonable hypothesis consistent

with” proper jury service, he could not dismiss Juror No. 13. Hopt, 120 U.S. at 441

(emphasis added). And for all that the district court knew, “the Holy Spirit told me

that Corrine Brown was not guilty on all charges” was nothing more than Juror No.

13’s way of saying in his own personal or cultural idiom that he had asked God to

help him weigh the evidence and that he thought God was leading him strongly

toward acquittal. He could very well have meant no more than what other religious

believers would have expressed in less vivid and direct language: for example,

“I’ve prayed about this, and I feel that I have to vote not guilty.” Cf. State v. Rios,

314 S.W.3d 414, 419 (Mo. Ct. App. 2010) (relating one juror’s statement to

another juror “that she had prayed on it, and that as a result of her prayers, she was

confident that God [was] leading her in the right direction”). Juror No. 13’s

statement did not establish “by definition” that he was basing his decision on a

private revelation independent of the evidence. It provides little comfort that the

majority insists it might in a different case uphold a judge’s finding that a juror

used “mere[] idioms” to “describe only prayer” under the deferential standard it

applies today. Majority Op. at 38 (alteration adopted) (internal quotation marks

omitted). The risk of misunderstanding an idiom underscores the importance of

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reviewing the district court’s decision to determine whether the fact of misconduct

was proved beyond a reasonable doubt.

The district court erred when it inferred an improper thought process from

the face of Juror No. 13’s language—an error that the majority has now

consecrated as law. Once we see through the district court’s confused reasoning,

we find ourselves where we have been all along: with slender proof of Juror No.

13’s misconduct and ample reason to doubt.

D. The Remaining Arguments in Support of the Dismissal Fail.

Besides the district court’s primary reason for dismissing Juror No. 13—its

mistaken view that his religious statements were disqualifying per se—the

government and the district court’s order denying Brown’s motion for a new trial

suggest, but do not develop, several other arguments in support of the dismissal.

Without exception, these half-proffered rationales are irrelevant.

For example, in a footnote in its order denying a new trial, the district court

suggested that the mere fact of Juror No. 8’s concern was probative of misconduct.

That footnote read, in full: “Juror No. 8 was concerned enough that she contacted

the courtroom deputy by phone at night, and followed up with a letter. In both of

those communications she mentioned that other jurors were concerned about Juror

No. 13 as well.” In the same order, the district court wrote that “[h]ad Juror No. 13

simply stated to his fellow jurors that he was praying for guidance during the

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deliberations, that would not have been problematic (and I doubt Juror No. 8 would

have brought it to the Court’s attention).” Although the district court did not make

this argument in so many words, the obvious implication of these remarks is that it

considered that Juror No. 8 was concerned as evidence that she was right to be

concerned.

That reasoning turns Abbell’s principles upside-down. One reason that “we

must apply a tough legal standard” to the dismissal of deliberating jurors is the

danger that a majority of jurors might “collectively agree that the one or two hold-

outs—instead of honestly disagreeing about the merits—are actually refusing to

apply the law” and might “request the court’s intervention with regard to those one

or two dissenting jurors.” Abbell, 271 F.3d at 1302. Such situations need not arise

from the jurors’ bad faith. In many cases, the natural human tendency to frustration

and misunderstanding when faced with intractable disagreement will be enough. In

every case, the point of our “tough legal standard” is to ensure that the dismissal of

a juror accused of misconduct cannot be based solely on the accusers’ say-so.

“Thus, judges must be careful not to dismiss jurors too lightly, even in the face of

complaints from a majority of the jury.” Id. Needless to say, it follows that they

must take care not to dismiss jurors too lightly in the face of mild expressions of

concern from a single juror.

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Still less relevant is any weight that the district court may have given to

Juror No. 8’s statements “that other jurors were concerned about Juror No. 13 as

well.” None of those jurors raised any concern with the district court, and the

district court did not seek out their perspectives to confirm if they were accurately

described. True, Juror No. 8 wrote that other jurors joined her in “ask[ing] [Juror

No. 13 to] base his verdict on the evidence,” and she told the district court that

others expressed concerns about Juror No. 13’s religious statements in his presence

during deliberations. But the district court elicited no information about either the

content or the context of the other jurors’ remarks. Nor did it learn anything about

Juror No. 13’s response to his fellow jurors’ concerns. As far as we know, he may

have allayed entirely the concerns of every juror who had raised an eyebrow at his

initial comments, with the sole exception of Juror No. 8. After all, she stated that

she had not discussed bringing her concern to the district court with any other

juror. To draw the conclusion that more than one juror was seriously worried is to

speculate on the basis of the vaguest hearsay. If judges must tread lightly “even in

the face of complaints from a majority of the jury,” Abbell, 271 F.3d at 1302, all

the more must they be careful not to treat vague, secondhand reports of shared

concern as if they were complaints from multiple jurors.

The most troubling red herring is the government’s suggestion that Juror No.

13 must have been disregarding the evidence because he expressed the belief that

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Brown was not guilty of all 24 charges. The government conveys this message

through the following phrases sprinkled throughout its brief: “Juror No. 13 had

stated . . . that he had been told by the Holy Spirit that Brown was not guilty of all

24 charged counts”; “[n]otwithstanding his acknowledgement that he had received

information telling him the appropriate verdict as to each of the 24 charged counts,

Juror No. 13 persisted that he was following the court’s instructions . . . .”; “he had

been told by the Holy Spirit . . . that Brown was not guilty of all 24 charged

crimes”; “Juror No. 13’s announcement at the outset of deliberations that Brown

was not guilty of all 24 counts because the Holy Spirit had told him so”; Juror No.

13 was told to “find Brown not guilty on all 24 charges”; Juror No. 13 “received

information from the Holy Spirit directing him to vote ‘not guilty’ across-the-

board”; Juror No. 13 was told “specifically what result to reach as to each count in

this case”; “he had pre-decided the case—all 24 counts.” Although the government

never explicitly spells it out in its brief, its repeated choice to emphasize the

number of charges makes it hard to read the brief without receiving the impression

that it intended to suggest that because Brown was charged with 24 counts, she

must be guilty of at least some of them. Sure enough, at oral argument, the

government suggested that the district court properly could have considered that

Juror No. 13 said that Brown was “not guilty of all twenty-four counts” when it

concluded that Juror No. 13 was indifferent to the evidence. See Oral Argument at

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28:20–30:35 (Feb. 2, 2019) (“That too provides more support for the court’s

finding.”). And there is some reason to think the district court may have done so.

In its order denying a new trial, the district court stressed that “Juror No. 13 . . .

announced to his fellow jurors when they began deliberating on the first charge

that the Holy Spirit told him that Corrine Brown was not guilty ‘on all charges.’”

The district court did not explain why it quoted and underlined those three words.

In assessing the likelihood that a juror who favors acquittal is basing his

decision on the evidence, courts plainly cannot consider the number of charges

against the defendant any more than they can consider “the apparent strength of the

government’s case,” Brown, 823 F.2d at 600. In every jury trial, whether the

indictment charges one count or one hundred counts, “the ultimate conclusion of

guilt or innocence” is “the jury’s constitutional responsibility.” Gaudin, 515 U.S. at

514. More to the point, it is each juror’s prerogative—indeed, it is his duty—to

withhold his assent to a guilty verdict on each, any, or all charges unless he is

convinced that the government has proved those charges beyond a reasonable

doubt. For a court to reason that a juror must be disregarding the law, the evidence,

or both because he is unwilling to convict the defendant of something—or even to

entertain such a thought as one factor among several in its assessment—would

trespass intolerably on the factfinding authority of the jury, to say nothing of the

presumption of innocence. See James B. Thayer, The Origin and Scope of the

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American Doctrine of Constitutional Law, 7 Harv. L. Rev. 129, 150 (1893) (“The

court must not, even negatively, undertake to pass upon the facts in jury cases.”).

Simply put, the government is not entitled to an inference that a defendant who has

been charged with many crimes is likely guilty of one of them and that any juror

who disagrees is likely a nullifier.

E. The Majority Blesses a New Tactic for Disqualifying Certain
Demographics from Jury Service.
Before concluding, I highlight one practical implication of the majority’s

decision. By affirming the dismissal of Juror No. 13, the majority creates the

opportunity for whole swathes of citizens to be perfunctorily excluded from the

jury pool at the outset during voir dire, and in doing so, provides cover for a

discriminating attorney to obfuscate his invidious motives. All a discriminator need

do is ask the jury venire about the nature of their beliefs in and relationship with

God and then cite the majority’s opinion to show that the offending jurors—of

whom undoubtedly will be disproportionately comprised of African Americans and

evangelical Christians—should be struck.

During jury selection, the trial court, on its own or upon a party’s request,

can excuse for cause any juror whom it believes cannot follow the law and

evaluate a case impartially. By affirming the dismissal of Juror No. 13, the

majority provides a roadmap for using a juror’s beliefs about the nature of prayer

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and divine guidance to proffer a neutral explanation that, in fact, masks more

invidious discrimination.

African Americans and evangelical Christians believe they communicate

with God at disproportionately high rates. See Pew Research Center, When

Americans Say They Believe in God, supra at 27 (reporting that 60 percent of

historically black Protestants and 45 percent of evangelicals believe God talks

directly to them); A Religious Portrait of African Americans, Pew Research Center

(Jan. 30, 2009) (reporting that 59 percent of African Americans identify with a

historically black Protestant church and 15 percent with an evangelical Protestant

church), https://www.pewforum.org/2009/01/30/a-religious-portrait-of-african-

americans. Of course, contrary to the Majority’s contention, I do not suggest that

either African Americans or evangelical Christians would be unable to base

decisions on the evidence presented. See Majority Op. at 42. My concern is that the

majority’s decision allows a discriminating attorney to remove persons who are

able to base their decision on the evidence but who believe God communicates

with them.

Because more African Americans and evangelical Christians believe God

communicates with them, these two demographics will likely bear the brunt of the

majority’s decision. An attorney can now easily target and eliminate many

members of these groups with the simple expediency of asking a few questions to

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each potential juror: (1) Does God speak to and provide divine guidance to you in

your daily life? If so, (2) will you pray for his guidance in evaluating this case? If

so, (3) do you expect God to answer? If so, (4) will you follow God’s guidance?

Those who faithfully answer “Yes” to these questions are now safely excusable

under today’s decision without further inquiry, and it will be difficult for a judge to

prevent these groups from being struck at disproportionate rates when this Court

has blessed such excusal even after trial concludes and the jury is deliberating.

In effect, the majority’s decision requires a trial court to remove those jurors

for cause and so creates an end-run around the protections of Batson v. Kentucky,

476 U.S. 79 (1986). A discriminating attorney can ask questions of the venire that

disproportionately impact certain demographics and then demand the trial court

dismiss these jurors for cause in the name of United States v. Brown. And any

member of the jury venire who speaks to and receives wisdom from God will be

stricken on as little as the profession that she communicates with God and expects

to communicate with God about the evidence at trial, even if she sincerely

promises that she will follow the law and consider the evidence in evaluating the

case.

We will be hard pressed to police these for-cause excusals on appeal because

it is within the trial judge’s discretion to excuse a potential juror for cause. United

States v. Flores, 572 F.3d 1254, 1261 (11th Cir. 2009). And after today’s decision

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it would be an abuse of discretion for the trial court not to strike these potential

jurors for cause. After all, the majority concludes that a juror’s statement that he

sought and received guidance from God establishes beyond a reasonable doubt

that he is unfit to serve. See Majority Op. at 37 (explaining that based on the

district court’s findings, “excusing [Juror No. 13] was the only correct course of

action”). In short, the majority’s opinion creates more mischief than it manages

and sets the groundwork to deprive many sincere, religious citizens of one of “the

most substantial opportunit[ies]” they “have to participate in the democratic

process.” Flowers v. Mississippi, 139 S. Ct. 2228, 2238 (2019).

* * *

The majority’s approval of Juror No. 13’s dismissal cannot be reconciled

with the rigorous legal standard we adopted in Abbell. I do not know what was

happening in Juror No. 13’s mind, much less his soul, in the two days preceding

his dismissal. But I am firmly convinced that the district court did not know he

engaged in an impermissible thought process either—not beyond a reasonable

doubt.

Juror No. 13 repeatedly and specifically assured the district court that he was

basing his decision on the evidence. He told the district court that his religious

beliefs required him to do so. The district court did not think he was lying when he

gave those assurances. And Juror No. 8 agreed that he was deliberating. That Juror

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No. 13 spoke about his relationship with God in more vivid and direct terms than

many of us hear in our day-to-day life did not prove beyond a reasonable doubt

that he was unable to perform his duties. The record clearly discloses a substantial

possibility that Juror No. 13 was basing his decision on his honest assessment of

the evidence. That possibility entitles Brown to a new trial.

Not only does the majority’s decision deny Brown her right to the

unanimous and uncoerced verdict of an impartial jury of her peers, it also imperils

that right for other defendants in this Circuit. It countenances discrimination

against a substantial segment of the citizens in our Circuit who pray for and believe

they receive divine guidance in their daily affairs. And it permits district courts to

disqualify these ordinary people from jury service for nothing more than

expressing that belief—even when there is good reason to think they are

performing their duties.

I respectfully dissent.

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