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United States v. Kelly

United States Court of Appeals, Fifth Circuit

November 14, 2017

LARRY W. KELLY, JR., also known as Larry Kelly, also known as Larry W. Kelly, also known as Larry Kelly, Jr., Defendant-Appellant

         Appeal from the United States District Court for the Middle District of Louisiana

          Before SMITH, OWEN, and HIGGINSON, Circuit Judges.


         Larry W. Kelly, Jr., appeals his conviction. He contends that the district court erroneously denied his motion for a mistrial and motion for a new trial, which alleged that the district court violated Federal Rule of Criminal Procedure 24(c) by failing to excuse an alternate juror at the end of trial and permitting her to be in the jury room during part of the regular jury's deliberations. Because the district court did not abuse its discretion, we affirm.


         After a two-day jury trial, Larry Kelly was found guilty of being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). At the conclusion of closing statements and jury instructions, at approximately 2:48 p.m., the district court asked all members of the jury "to return to the jury room" and instructed the jury "to not begin your deliberations or even discussions on the case until you receive all the evidence and the verdict form." The district court neglected to dismiss the alternate juror, and neither party objected when she was allowed to return to the jury room with the twelve other jurors. At approximately 2:55 p.m., the trial evidence was delivered to the jury so it could begin deliberating.

         The jury deliberated for approximately thirty minutes before the court discovered that it had failed to dismiss the alternate juror. At 3:29 p.m., having realized its oversight, the district court ordered the courtroom security officer to remove the alternate from the jury room and to tell the remaining jurors to discontinue deliberations. The alternate returned to the courtroom, where the district court explained the oversight and dismissed her. The district court asked the alternate not to speak with anyone about the deliberations.

         The district court then called Kelly and the attorneys for both sides back into the courtroom to discuss the error. The district court notified the parties of its intention to call the remaining jurors back into the courtroom and to instruct them to begin deliberations anew, as well as to disregard any possible participation by the alternate. Kelly's attorney objected, but did not counter with an alternative course of action, and moved the court for a mistrial. The district court denied the request.

         The remaining jurors returned to the courtroom, and the district court gave the following explanation and curative instruction:

At the conclusion of our evidence portion of the trial and the instructions on the law that I gave you, I should have excused the alternate juror . . . at that time before you began your deliberations. I failed to do that.
As you know, I have now excused [the alternate juror] and I now must instruct you to begin your deliberations anew. I do not know to what extent [the alternate] participated in your discussions or your deliberation, but I specifically instruct you at this time that you should essentially wipe the slate clean and start anew with respect to your evaluation of the evidence in your discussion about the evidence.
It is important that you do that at this point without, again, the input or involvement of anyone who is not a regular member of the jury.
I apologize for that mistake. I hope it hasn't turned out to be time consuming error on my part, but I certainly hope that you all appreciate the importance of beginning fresh, and hopefully you all will have no problem doing so.

         Approximately 90 minutes later, the jury returned a unanimous guilty verdict. Before calling the jury into the courtroom to deliver the verdict, the court explained to the parties that it planned to call each juror forward individually to "question them regarding the extent to which, if any, [the alternate juror's] presence in the jury room in any way affected their deliberations once they began their deliberations anew." The court explained that it wanted "to satisfy [itself and the parties] . . . that [the jurors] were not influenced by the presence of the alternate juror during the deliberations that resulted in the verdict." The court gave each side an opportunity to propose more specific questions to ask the jurors. ...

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