The opinion
RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0183p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
UNITED STATES OF AMERICA,
│
Plaintiff-Appellee, │
v. > No. 21-1329
│
│
ANTHONY OISONI OZOMARO, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:19-cr-00081-1—Hala Y. Jarbou, District Judge.
Argued: June 7, 2022
Decided and Filed: August 11, 2022
Before: STRANCH, DONALD, and THAPAR, Circuit Judges.
_________________
COUNSEL
ARGUED: Steven R. Jaeger, THE JAEGER FIRM PLLC, Erlanger, Kentucky, for Appellant.
Erin K. Lane, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for
Appellee. ON BRIEF: Steven R. Jaeger, THE JAEGER FIRM PLLC, Erlanger, Kentucky, for
Appellant. Erin K. Lane, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan,
for Appellee.
_________________
OPINION
_________________
BERNICE BOUIE DONALD, Circuit Judge. Following two days of evidence, two days
of deliberations, and two composed juries, defendant appellant Anthony Ozomaro was convicted
of possessing with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1)
No. 21-1329 United States v. Ozomaro Page 2
and (b)(1)(A)(viii). On appeal, Ozomaro seeks a new trial based on assertions of improper
removal and replacement of a deliberating juror or, in the alternative, a new sentencing hearing
due to an allegedly improper sentencing enhancement. For the following reasons, we affirm.
I.
On April 10, 2019, Ozomaro was indicted on one count of possessing with intent to
distribute fifty grams or more of methamphetamine. Ozomaro pled not guilty, and the district
court appointed him counsel. Four months later, counsel moved for a competency evaluation.
Counsel alleged that Ozomaro was having “delusional thoughts” and providing “highly
irrational” responses to basic questions. The court found “reasonable cause to believe that
[Ozomaro] may presently be suffering from a mental disease or defect rendering him mentally
incompetent,” and referred him to a forensic psychologist for evaluation. The psychologist noted
that “Ozomaro presented with beliefs that were not typical” and diagnosed him with
“Unspecified personality disorder with antisocial and schizotypal traits.” However, the
psychologist ultimately found that Ozomaro was able to understand the nature of the proceedings
against him, and thus, competent to stand trial. The district court issued an order finding the
same.
In February 2020, defense counsel moved to withdraw because Ozomaro disagreed on
how to proceed with the case and wished to represent himself. Following a hearing on the
motion, the district court determined that Ozomaro knowingly, intelligently, and voluntarily
waived his right to counsel. The court allowed Ozomaro to proceed pro se, but ordered counsel
to serve as standby counsel. The court then scheduled a final pretrial conference for April 28,
2020.
In the meantime, Ozomaro moved to dismiss the case for lack of jurisdiction. He argued:
Eye am demanding imediate dismissal of underlining quote ‘criminal offense,’
Eyam being charged with. Eye am not a ‘Pupil’ of the United State and am not
subject to United State Jurisdiction. The Underlined ‘Criminal Offense’ Eye am
being “charged” with is a Extraterritorial event and Iam demanding my
Extraterritoriality. Eye am further more demanding my release from this United
State banking institute, where eye am illegally being held for financial gain
No. 21-1329 United States v. Ozomaro Page 3
against my will. Eye will no longer be complying with ‘United States’ ‘Govern-
mental’ (Mind Control) Programing or proceedings.
Ozomaro again raised the issue of jurisdiction at the April 28 pretrial conference. The district
court denied his motion and stated, “We will, in fact, go to trial next week Tuesday.” Ozomaro
immediately replied, “I won’t be there.” When the court asked for any other preliminary matters,
Ozomaro again stated, “I told you I am not going to trial.” Ozomaro repeated this sentiment
several times throughout the remainder of the conference. Finally, the court warned, “You don’t
intend to be here. I do expect that you will be here–either by force or your own volition. You
are going to have to make up your mind between now and a week from tomorrow.” Ozomaro
replied, “They are forcing me. I am not going to be here.” On June 16, the day set for trial,
Ozomaro refused to leave his holding cell. In Ozomaro’s absence, the district court released the
jury venire and adjourned trial until October 20.
On October 20, Ozomaro appeared and announced his readiness to proceed. The district
court conducted voir dire and asked the prospective jurors a series of open-ended questions,
including whether anything would prevent them “from being fair and impartial to either side”
and whether anyone held “negative opinion[s] about police in general or the criminal justice
system as a whole.” None of the jurors answered affirmatively, and neither party challenged a
juror for cause on those bases. Following peremptory challenges from the parties, the court
empaneled twelve jurors and two alternates.
The government presented its case over the course of two days, after which the jury
retired to deliberate. After six hours of deliberations, the district court received a note stating,
“We have not reached an agreement. We cannot come to a unanimous decision.” The court
gave an Allen instruction, and the jury returned to deliberations. Less than two hours later, the
jury sent another note stating, “We are unable to reach a unanimous decision today. We would
like all transcripts of the witnesses for deliberation 10/23/2019.” The court informed the jurors
that official transcripts were not available, and instructed them to continue deliberations the
following day.
The next morning, the district court informed the parties of new developments that
occurred overnight. First, one of the jurors had informed a court staff member that she observed
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a male juror drinking alcohol during lunch two days prior. The juror also stated that “the same
individual hates the Government and doesn’t believe anything they say.” Second, another juror
had called the district court chambers to ask if “it was legal to drink on lunch break,” and
commented that “a juror openly admitted bias to the Government.”
Over Ozomaro’s objection, the court separately questioned each juror to determine the
extent of the alleged misconduct. At the beginning of each interview, the judge cautioned, “I
don’t want to know anything about the state of the deliberations . . . or how your voting stands.”
The judge then continued to ask some variation of the following questions: “Have you
participated in, observed, or heard any misconduct either by yourself or another juror?” and
“Have there been any actions or statements that violate your oath as a juror or that is different
from what was said in open court during voir dire as to your oath and your responsibilities?”
Seven of the twelve jurors answered affirmatively.
Juror 33 reported that she observed another juror drinking “what looked like a 24-ounce
beer” during lunch. Juror 33 also stated that the same juror “explained [during deliberations] that
he does have bias [against] police officers.”
Juror 19 relayed that one of the jurors made a “comment [outside of deliberations] . . .
that they did not trust a couple of the people involved in the search.” Juror 19 further explained,
“For me it felt like if this person had that distrust that was the point of the interview process
when we first came in, and it’s like, why–if they have that distrust that’s not based on the
evidence, why are they here?”
Juror 46 stated that during a break in the trial, another juror had commented “that [a third
juror] had an alcoholic beverage during lunch one day.”
Juror 31 expressed concern that, based on a comment during deliberations, one of the
male jurors “can’t be fair and impartial to one side or the other.” Juror 31 stated that the
comment related to “that person’s assessment of the credibility of the witnesses,” but felt that it
violated their oath because “we were instructed . . . to maybe not put into personal feelings
toward an individual . . . .”
No. 21-1329 United States v. Ozomaro Page 5
Juror 114 reported that one of the jurors “refus[es] to uphold the law as it reads.” Juror
114 further relayed that the same juror stated, “You cannot trust the police. They will make
everyone look guilty. Any evidence provided by the police should not be trusted.” and “I hate
the Government.” Juror 114 also added that the same juror consumed a twenty-ounce beer
during lunch two days prior.
Juror 83 observed another juror “not being impartial regarding the Government’s
witnesses” during deliberations.
Juror 99 reported that one of the jurors “might be a little bias[ed] . . . for the Defendant”
based on comments made during deliberations. Juror 99 clarified that “it’s mainly the credibility
of different witnesses that have been questioned,” specifically “all of the law enforcement
officers.”
It became clear through the interviews that the jurors were referring to Juror 109, who
himself reported no instances of misconduct.
Based on these accounts, the district court excused Juror 109. The court found that the
consumption of alcohol did not constitute “good cause” to excuse the juror. It reasoned that “the
[jurors who] observed it all talk about a 20-ounce drink or maybe a 24-ounce drink . . . I didn’t
hear anything that would indicate that it was so much consumption that it would affect any sort
of deliberations.” However, the court determined that the bias against the government and the
lack of candor to the court constituted “good cause” to excuse the juror. The court found that
“it’s not a credibility of these particular witnesses[,] . . . [but] a bias in general against certain
witnesses and evidence[.]” The court further explained, “after taking two oaths, . . . this same
juror was not truthful in voir dire to the Court as it relates to that bias, nor was he truthful to the
Court this morning as it relates to that bias.” The court then replaced Juror 109 with an alternate
juror and instructed the jury “to start completely brand new.” Approximately three hours later,
the jury returned a guilty verdict. The district court subsequently sentenced Ozomaro to 168
months’ imprisonment, and this timely appeal followed.
No. 21-1329 United States v. Ozomaro Page 6
II.
Ozomaro first argues that the district court violated his rights to a fair and impartial jury
by removing Juror 109 and substituting an alternate juror after nearly eight hours of
deliberations. Ozomaro alleges that the other jurors wanted Juror 109 removed because he was
the lone holdout juror.
Federal Rule of Criminal Procedure 23(b)(3) empowers the district court to excuse a juror
for “good cause,” and Rule 24(c)(1) allows the district court to “replace any jurors . . . who are
disqualified from performing their duties.” The decision to replace a juror is entrusted to the
sound discretion of the district court “whenever facts are presented which convince the trial
judge that the juror’s ability to perform his duty as a juror is impaired.” United States v.
Gabrion, 648 F.3d 307, 338 (6th Cir. 2011) (citing United States v. Cameron, 464 F.2d 333, 335
(3d Cir. 1972)), rev’d en banc on other grounds, 719 F.3d 511 (6th Cir. 2013). We “will not
disturb the judge’s finding on appeal except for a want of any factual support or for a legally
irrelevant reason.” United States v. Gjokaj, 555 F. App’x 581, 585 (6th Cir. 2014) (internal
quotation marks omitted) (quoting United States v. Coleman, 997 F.2d 1101, 1106 (5th Cir.
1993)).
As a preliminary matter, Ozomaro contends that the district court conducted an
inadequate and incomplete hearing regarding the alleged juror misconduct. But the scope of
investigation into a juror’s ability to remain impartial is committed to the sound discretion of the
district court, and we have never required a hearing before removing a juror whose ability to
remain impartial is under question. Id. at 585. “All that is needed to satisfy a prudent exercise of
discretion is to be certain the trial court had sufficient information to make an informed
decision[.]” United States v. Jones, 747 F. App’x 348, 356 (6th Cir. 2018) (quoting United
States v. Reese, 33 F.3d 166, 173 (2d Cir. 1994)). Although the district court here could have
asked more pointed questions, a review of the record shows a sufficient factual inquiry from
which to find good cause.
Ozomaro next argues that the district court did not carefully discern general bias from
credibility issues in determining “good cause.” The proper standard for determining “good
No. 21-1329 United States v. Ozomaro Page 7
cause” is not a settled issue in this circuit. It is well established that a district court may remove
a juror for instances of misconduct, including bias, an inability to follow instructions, or a lack of
candor under oath. See Wofford v. Woods, 969 F.3d 685, 701-05 (6th Cir. 2020) (recounting the
history of juror removal and the role of the trial judge). However, it is equally well established
that a district court may not remove a juror based on their doubts about the sufficiency of the
government’s evidence. Id. “[T]he reasons underlying a request for a dismissal will often be
unclear.” United States v. Brown, 823 F.2d 591, 596 (D.C. Cir. 1987). To avoid the danger that
a juror will be discharged based on their view of the evidence, the D.C. Circuit crafted a
prophylactic evidentiary standard for the district court to employ in making its determination:
“[I]f the record evidence discloses any possibility that the request to discharge stems from the
juror’s view of the sufficiency of the government’s evidence, the court must deny the request.”
Id. (emphasis added).
A decade later, the Second and Ninth Circuits addressed the same issue. The Second
Circuit adopted the Brown rule in its entirety. See United States v. Thomas, 116 F.3d 606, 622
(2d Cir. 1997). The Ninth Circuit adopted a slightly modified version of the Brown rule, holding
that “if the record evidence discloses any reasonable possibility that the impetus for a juror’s
dismissal stems from the juror’s views on the merits of the case, the court must not dismiss the
juror.” United States v. Symington, 195 F.3d 1080, 1087 (9th Cir. 1999) (emphasis added). The
court emphasized “that the standard is any reasonable possibility, not any possibility whatever. It
may be that ‘[a]nything is possible in a world of quantum mechanics.’” Id. n.5 (alteration in
original) (quoting United States v. Watkins, 983 F.2d 1413, 1424 (7th Cir. 1993) (Easterbrook, J.,
dissenting)).
In the following years, the Eleventh and Third Circuits weighed in on the debate. The
Eleventh Circuit adopted a second variation of the Brown rule, holding that “a juror should be
excused only when no ‘substantial possibility’ exists that she is basing her decision on the
sufficiency of the evidence.” United States v. Abbell, 271 F.3d 1286, 1302 (11th Cir. 2001)
(emphasis added). The court explained that “this standard [is] basically a ‘beyond a reasonable
doubt’ standard.” Id. The Third Circuit noted that the slight difference in standards “is one of
clarification and not disagreement,” but adopted the Symington and Abbell standards “[t]o the
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extent that there is a difference.” United States v. Kemp, 500 F.3d 257, 304 (3d Cir. 2007). It
held that “district courts may discharge a juror for bias, failure to deliberate, failure to follow the
district court’s instructions, or jury nullification when there is no reasonable possibility that the
allegations of misconduct stem from the juror’s view of the evidence.” Id. The court found,
“That standard will allow us to avoid abstract ‘anything is possible’ arguments, provide district
courts with some leeway in handling difficult juror issues, and protect each party’s right to
receive a verdict rendered by a jury that follows the law.” Id.
Although this Court has never expressly delineated a “good cause” standard, we touched
on the issue in United States v. Patterson, 587 F. App’x 878, 888-91 (6th Cir. 2014). In
Patterson, Juror 6 said nothing in response to the following during voir dire: (1) questions about
whether any jurors were “having an on-going issue relating to drugs, whether themselves or
close friends, relatives, members of their church they’re very close to, anything like that”;
(2) inquiries as to whether any juror “had their life touched by drugs or drug abuse or addiction
or anything like that”; and (3) the statement that, “if there’s something that strikes too close to
home about drugs, then that’s something that we would need to know about.” Id. at 889. The
government chose not to exercise a peremptory strike against Juror 6, and she was subsequently
empaneled on the jury. Id. During the second day of deliberations, the foreperson sent a note to
the judge which stated:
Judge Nixon, one of the Jurors overheard a fellow Juror commenting on having
prior information about drug dealing that she did not reveal during Jury selection.
I feel that this prior information could perhaps be influencing her ability to reach a
fair decision and should have been made known during the selection process.
Thus, can we consider removing this Juror and using one of the Alternates?
Id. at 896 (Cole, J., concurring in part). Faced with these allegations, the district court conducted
interviews of the relevant jurors. Id. at 889. Statements from the jurors, including Juror 6
herself, indicated that she knew people who used drugs and “it was prejudicing [her] against this
trial.” Id. Based on this information, the court removed Juror 6 and replaced her with an
alternate. Id.
On appeal, a divided court affirmed. The majority determined that the jurors’ request to
remove Juror 6 did not stem from her views of the case, but rather from her lack of candor during
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voir dire. Id. at 890. The majority found that the jurors’ statements did not indicate a
disagreement with Juror 6’s views of the merits or a dissatisfaction with her defense of her
views. Id. The majority thus concluded that nothing in the record showed the district court was
even aware of Juror 6’s disposition, let alone removed her because of it. Id. Accordingly, the
majority held that Juror 6’s lack of candor constituted good cause for removal and that the
remarks of the jurors offered “no reasonable indication that the request for her discharge
stemmed from her view of the merits.” Id. at 889. The dissent disagreed, reasoning that there
was “a real possibility that the foreperson requested Juror 6’s removal due to her view of the
sufficiency of the government’s evidence (i.e., because she was a ‘holdout’ juror).” Id. at 894
(Cole, J., concurring in part).
Today, we clarify our decision in Patterson and expressly adopt the “reasonable
possibility” standard set forth by our sister circuits in Symington and Kemp. Applying this
standard here, Ozomaro cannot meet his burden. On the morning before the second day of
deliberations, the district court revealed that two jurors had contacted court staff and expressed
concerns of juror misconduct. The judge interviewed each juror individually on the record, and
six jurors reported that Juror 109 expressed bias against the government. Three jurors
unequivocally described a general bias against the government; two jurors stated that Juror 109
made comments related to the credibility of the witnesses but later clarified that the distrust was
“not based on the evidence” and resulted instead from “personal feelings toward an individual”;
and one juror described an unfavorable credibility determination against an entire category of
witnesses—the law enforcement witnesses. Notably, however, none of the jurors reported that
Juror 109 distrusted a specific witness or found specific portions of the testimony not credible.
And although it became clear that Juror 109 was a holdout juror, there was no evidence that the
discharge requests stemmed from that fact. Therefore, the district court was well within its
discretion in concluding that there was no reasonable possibility that the discharge stemmed
from Juror 109’s views of the case. Accordingly, the district court had “good cause” to excuse
Juror 109 for bias and lack of candor to the court.
If a district court properly replaced a juror for good cause, then reversal is warranted only
“on a clear showing that [the defendant] was prejudiced by the juror’s being excused.” Jones,
No. 21-1329 United States v. Ozomaro Page 10
747 F. App’x at 355 (citing United States v. Warren, 973 F.2d 1304, 1308 (6th Cir. 1992)). The
Eleventh Circuit has set forth several relevant factors for determining prejudice:
the length and complexity of the trial; the amount of time the jury had deliberated
before a juror was removed; the steps that the district court took to ensure that the
alternate had not been exposed to extrinsic information about the case; and
whether the remaining jurors began their deliberations anew after the alternate
was substituted.
United States v. Oscar, 877 F.3d 1270, 1289 (11th Cir. 2017).
This case was relatively simple—it involved one defendant, one count, and less than two
full days of testimony. Throughout the trial, the district court admonished the jury to consider
only the evidence seen and heard in court. Before the jury retired to deliberate, the court
“excuse[d] the two alternate jurors,” ordered them to remain in a separate place, and instructed
them not to further discuss the case. The jury then deliberated for almost eight hours before
Juror 109 was removed. Following the substitution of the alternate juror, the court instructed the
jurors “to start completely brand new.” Ozomaro presented no evidence that the alternate juror
was biased or unable to render an impartial verdict. After two and a half hours, the jury
requested to see three exhibits, and thirty-one minutes later, the jury returned a guilty verdict.
Under these circumstances, we cannot say that the district court abused its discretion in
dismissing Juror 109 for good cause or replacing him with an alternate.
Ozomaro makes one final attempt to overturn his conviction. He argues that the district
court violated his due process rights by rereading the “duty to deliberate” instruction without
including the government’s burden of proof beyond a reasonable doubt. This argument is
factually inaccurate. The district court specifically instructed the jurors to “[l]isten carefully to
what the other jurors have to say and then decide for yourself if the Government has proved the
Defendant guilty beyond a reasonable doubt.” Therefore, we cannot say that the district court
erred in instructing the jury to begin its deliberations anew.
No. 21-1329 United States v. Ozomaro Page 11
III.
Next, Ozomaro contends that the district court erroneously applied a two-level sentencing
enhancement for obstruction of justice based on his refusal to leave the holding cell and appear
for the original trial on June 16, 2020.
The Sentencing Guidelines allow the district court to increase a defendant’s base offense
level when:
(1) the defendant willfully obstructed or impeded, or attempted to obstruct or
impede, the administration of justice with respect to the investigation,
prosecution, or sentencing of the instant offense of conviction, and (2) the
obstructive conduct related to (A) the defendant’s offense of conviction and any
relevant conduct; or (B) a closely related offense.
U.S.S.G. § 3C1.1. The application notes provide that a defendant obstructs or impedes the
administration of justice when he “willfully fail[s] to appear, as ordered, for a judicial
proceeding.” Id., cmt. n.4(E). We review de novo the determination of whether specific facts
constitute an obstruction of justice. United States v. Bazazpour, 690 F.3d 796, 805 (6th Cir.
2012).
Here, the district court determined that “Ozomaro’s behavior from the very beginning in
this case has been to delay.” The court found that his plan came to fruition when he made the
conscious decision to not leave his holding cell and appear for trial. Ozomaro is correct that his
pretrial incarceration creates an unusual situation. However, we are not the first circuit to
address the applicability of § 3C1.1 under these circumstances. See United States v. Perkins, 787
F.3d 1329 (11th Cir. 2015).
In Perkins, the defendant refused to leave his holding cell on the day of trial, saying
“What if I don’t defend? What if I’m not a defendant? Where is your defendant? How can you
have a defendant if I’m not here to defend anything?” Id. at 1335. The district judge met with
the defendant and tried to persuade him to enter the courtroom, but to no avail. Id. at 1336. The
defendant further threatened that he would go “kicking and screaming” if the marshals tried to
force him to go to the courtroom. Id. On this record, the Eleventh Circuit found that the
defendant “willfully failed to appear for his trial despite the district judge’s repeated efforts to
No. 21-1329 United States v. Ozomaro Page 12
persuade him to attend.” Id. at 1341. The court determined that the defendant “willfully set out
to clog the gears of the judicial process,” and thus, his actions fell within the scope of § 3C1.1.
Id.
The same can be said here. A review of the record shows that Ozomaro continuously
acted with the purpose of avoiding trial. Earlier in the proceedings, Ozomaro invoked his right
to self-representation which necessitated his appearance at trial. At the final pretrial conference,
after the court denied his motion to dismiss, Ozomaro persistently stated he would not go to trial
and threatened, “They are forcing me. I am not going to be here.” On June 16, the day set for
trial, Ozomaro followed through with his earlier sentiment and refused to leave his holding cell.
Without Ozomaro’s participation at trial, the venire had to be dismissed and the trial adjourned
for over four months. Under these circumstances, the district court did not err in finding that
Ozomaro’s actions constituted an obstruction of justice for purposes of § 3C1.1.
IV.
For the foregoing reasons, we AFFIRM the district court's judgment of conviction and
sentence.