United States of America, Plaintiff-appellee, v. Santos Acevedo, Defendant-appellant, 141 F.3d 1421 (11th Cir. 1998)

Rule 24(c) of the Federal Rules of Criminal Procedure requires district judges to discharge any alternate juror who has not replaced a regular juror "after the jury retires to consider its verdict." In the case at hand, the district court forgot to dismiss the alternate jurors when the jury retired; as a consequence, the alternates participated in deliberations. When the court discovered its mistake, it dismissed the alternates and instructed the jury to begin deliberations anew--the jury thereafter found the defendant guilty as charged. The defendant now appeals, contending that either 1) the court's violation of Rule 24(c), with nothing more, or 2) the alternates' participation in deliberations required the district court to declare a mistrial. We disagree and therefore affirm.

On March 15, 1995, Santos Acevedo was brought to trial in the Southern District of Florida on two federal weapons charges: possession of a firearm as a convicted felon, and possession of ammunition as a convicted felon. See 18 U.S.C. § 922(g) (1) (1994). A jury of twelve and two alternates was empaneled; the trial consumed less than one day. Following closing argument, the court charged the jury and the jurors retired to deliberate.

The court, however, did not dismiss the alternates; they accompanied the twelve regular jurors to the deliberation room without objection. The fourteen jurors took less than one hour to conclude that the defendant was guilty on both counts of the indictment, to have the foreman fill out and sign the verdict form, and to inform the court that a unanimous verdict had been reached.¹  At this point, the court realized that the two alternates had participated in the jury's deliberations, and immediately notified the parties. After speaking to counsel, the court proposed that it dismiss the alternates and instruct the twelve regular jurors to begin their deliberations again. Acevedo objected, but offered no alternative solution. When the court indicated that it would implement its proposal, Acevedo moved for a mistrial. The court denied the motion and proceeded to bring the jury back into the courtroom.

After explaining the problem to all fourteen jurors--that the alternates should not have been present during jury deliberations--the court placed under seal the verdict form that had been executed. It instructed the twelve regular jurors "to commence deliberations as if anew, taking into consideration all of the instructions I previously gave you ...," and released them to re-deliberate. The court then "polled" the two alternates (the poll indicated that the sealed verdict represented their verdict) and, upon Acevedo's request, confirmed that the alternate who handed the court the verdict form had acted as foreman during the jury's initial deliberations. Having made these findings a part of the record, the court discharged the alternates.

The jury, now composed of only the twelve regular jurors, took approximately five minutes to return a verdict of guilty on both counts of the indictment. Following sentencing, Acevedo lodged this appeal.

Acevedo claims that he was entitled to a mistrial. His initial contention is that the district court's failure to discharge the two alternates in adherence to the letter of Rule 24(c) constituted reversible error as a matter of law.²  Assuming that such failure did not, standing alone, require a mistrial, Acevedo contends that the court should have aborted the proceedings upon his motion because the prejudice he suffered from the alternates' presence in the deliberation room was incurable.³ 

We first review Acevedo's contention that the district court committed per se reversible error under a de novo standard, as it presents a question of pure law. We then review the trial court's decision to deny Acevedo's motion for mistrial for abuse of discretion. See, e.g., United States v. Puentes, 50 F.3d 1567, 1577 (11th Cir. 1995); United States v. Prince, 883 F.2d 953, 962 (11th Cir. 1989). Finally, although Acevedo did not object to the court's curative instruction at trial, we review the instruction for plain error. See Fed.R.Crim.Pro. 52(b) ("Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court."). We conclude after review that Acevedo's contentions hold no merit; we therefore affirm his convictions.

Acevedo's first argument--for an automatic mistrial--is easily disposed of; in United States v. Allison, 481 F.2d 468 (5th Cir. 1973),⁴  we explicitly rejected a rule of per se reversal for Rule 24(c) violations. See id. at 471 ("We ... are of the view that such an automatic rule is an improper standard to apply to the situation here at issue ...."); see also United States v. Phillips, 664 F.2d 971, 994 (5th Cir. Unit B 1981)⁵  ("This Court ... does not apply a per se rule of reversal to Rule 24(c) violations."). In doing so, we declined to follow the Fourth and Tenth Circuits in United States v. Virginia Erection Corp., 335 F.2d 868 (4th Cir. 1964), and United States v. Beasley, 464 F.2d 468 (10th Cir. 1972). Instead, we held that a Rule 24(c) violation does not necessitate a new trial unless there is a "reasonable possibility" that the violation prejudiced the defendant at trial. See 481 F.2d at 472.

In this case, we agree that the district court's oversight of Rule 24(c) posed a threat of prejudice to Acevedo because the court's failure to dismiss the alternates allowed them to enter the deliberation room. The Supreme Court has held that the mere presence of an alternate in the jury room during deliberations is not inherently prejudicial to the defendant. See United States v. Olano, 507 U.S. 725, 739-41, 113 S. Ct. 1770, 1780-81, 123 L. Ed. 2d 508 (1993). The Court, however, implied that once the alternate participates in any way--whether through words or gestures--prejudice is manifest. See id. at 739, 113 S. Ct. at 1780 (prejudice may arise "either because the alternates actually participated in the deliberations, verbally or through 'body language'; or because the alternates' presence exerted a 'chilling' effect on the regular jurors" (citations omitted)); United States v. Allison, 481 F.2d 468, 472 (5th Cir. 1973) (remanding to determine whether an alternate instructed merely to observe deliberations "participated in any way in the deliberations" and thereby caused the defendant prejudice). In Acevedo's case, it is obvious that the two alternates were full-fledged participants instead of silent observers; not only did the court instruct the alternates to deliberate with the regular jurors, the regular jurors treated the alternates as members of the jury, electing an alternate as their foreman. Thus, under Olano, we assume that the alternates were a prejudicial influence on the jury's deliberations.

A mistrial, however, is only warranted if there is a reasonable possibility that the district court's violation of Rule 24(c) actually prejudiced Acevedo by affecting the jury's final verdict.⁶  See United States v. Allison, 487 F.2d 339 (5th Cir. 1973) (affirming the defendant's conviction because the district court determined on remand that there was "no reasonable possibility" that an alternate present during deliberations had affected the jury's final verdict). In other words, unless there is a reasonable possibility that the alternates' initial participation caused the twelve regular jurors who rendered the final verdict to convict instead of acquit, the Rule 24(c) violation is harmless error and Acevedo's convictions will stand.

This brings us to Acevedo's second contention. He claims that we need not evaluate whether the district court cured the prejudice caused by the alternates' initial participation (by issuing its "clean slate" instruction) because that prejudice was incurable. Thus, Acevedo reasons, the district court abused its discretion when it denied his motion for mistrial based on the alternates' participation. Cf. United States v. Dodd, 111 F.3d 867, 870 (11th Cir. 1997) (stating that if the trial court has issued a curative instruction, we will reverse a denial of a motion for mistrial based on evidentiary error only when "the evidence is so highly prejudicial as to be incurable by the trial court's admonition"). In United States v. Phillips, 664 F.2d 971 (5th Cir. Unit B 1981), aff'g United States v. Meinster, 484 F. Supp. 442 (S.D. Fla. 1980), however, we held that the prejudice, if any, caused by the initial participation in deliberations of a regular juror who was excused for cause before the jury delivered its final verdict was curable. See also United States v. Kopituk, 690 F.2d 1289 (11th Cir. 1982) (adopting Phillips wholecloth). We believe that Phillips controls our decision here.

In Phillips, as in Acevedo's case, the district court violated the letter of Rule 24(c) by failing to discharge an alternate juror when the jury retired to deliberate. The court in Phillips, however, did not simply neglect to dismiss the alternate, but purposefully held that alternate "in reserve" against the possibility that the court would have to excuse a juror for cause during deliberations. See Phillips, 664 F.2d at 990.⁷  When a regular juror suffered a heart attack during deliberations, the court excused that juror and recalled the alternate. Id. Before adding the alternate to the jury, the court questioned the alternate concerning her exposure to outside influences after the case was submitted to the jury (a precaution obviously not necessary in this case). Id. The court then substituted the "reserve" alternate for the excused juror and instructed the jury (now composed of the eleven remaining regular jurors and the alternate) to begin deliberations again. Id. The jury eventually delivered a verdict of guilty. On appeal, the convicted defendant argued that the court's failure to dismiss the alternate in violation of Rule 24(c) was reversible error. Id. at 991-92. The court of appeals disagreed, holding that the district court had cured any prejudice caused by the late substitution. Id. at 996.

Although the Rule 24(c) violation in Phillips resulted in a fact pattern different from that in Acevedo's case, Phillips is identical to Acevedo's case in the only respect relevant to this appeal. In both cases, the threat of prejudice to the defendant arose at least in part because the excused juror (or in Acevedo's case, the two dismissed alternates) had an opportunity to influence the jury before he was excused. Thus, the excused juror may have convinced the jury to convict when it otherwise would have acquitted. Put a different way, in both Phillips and Acevedo's case there is a possibility that the final verdict did not reflect the independent judgment of the jurors rendering the verdict, but instead reflected an amalgamation of the judgments of every juror who participated at some point during the jury's deliberations.⁸ 

In Phillips, however, we held that the district court's curative procedures were sufficient to eliminate the threat of prejudice to the defendant resulting from the court's violation of Rule 24(c); thus, the violation was not incurable as a matter of law. We see no reason to hold differently here; the district court was within its discretion to deny Acevedo's motion for mistrial and to attempt to cure the prejudice caused by the alternates' participation by lesser means. Acevedo's argument--that he was entitled to a mistrial once the alternates participated in deliberations--fails.

The only remaining question, therefore, is whether the district court's clean-slate instruction eliminated the threat of prejudice to Acevedo posed by the alternates' initial participation; if so, the Rule 24(c) violation was harmless error.⁹  Because Acevedo did not challenge the language of the instruction at trial, we review it only for plain error. We find no error here; the instruction was sufficient to direct the twelve regular jurors to re-deliberate without regard to their initial decision.

We assume that jurors follow their instructions. See Francis v. Franklin, 471 U.S. 307, 324 n. 9, 105 S. Ct. 1965, 1976 n. 9, 85 L. Ed. 2d 344 (1985). Thus, because Acevedo presents no evidence to the contrary, we may assume that the twelve regular jurors began their deliberations anew as instructed, without influence from the now-absent alternates. The regular jurors were therefore able to deliver their final verdict free of prejudicial taint.

In light of the district court's clean slate instruction, we hold that there is no reasonable possibility that the participation of the alternates in the jury's initial deliberations prejudiced Acevedo at trial, and that the court's oversight of Rule 24(c) is therefore harmless error. The district court's judgment is

AFFIRMED.