United States of America, Plaintiff-appellee, v. Dennis Lee Curry, Aka: Dennis Curry, Defendant-appellant, 38 F.3d 1219 (9th Cir. 1994)

MEMORANDUM^** 

1. The record does not support defendant's contention that the district court was motivated by racial animus when it removed two jurors who started quarreling during deliberations. To the contrary, the court scolded one of the jurors for displaying racial bias in the jury room, and specifically instructed the remaining jurors that racial prejudice could play no role in their evaluation of the evidence. The district court's decision to remove the two quarreling jurors was based solely on the need to maintain order and civility during the jury's deliberations, and thus did not constitute an abuse of discretion. See United States v. Egbuniwe, 969 F.2d 757, 763 (9th Cir. 1992).

2. Though the district court erred in substituting the alternate jurors after deliberations began, see United States v. McFarland, slip op. 11007, 11019 & n. 4 (9th Cir. Sept. 13, 1994) (Rule 24(c) waiver is valid only if made by defendant personally), Curry has not shown that this error affected substantial rights. There is nothing to suggest that the outcome of the jury's deliberations would have been any different had the alternates not been substituted. See id. at 11022-23. Because defendant has failed to show he was prejudiced by the district court's action, we cannot conclude that plain error was committed. See United States v. Olano, 113 S. Ct. 1770, 1777-78 (1993).

AFFIRMED.