from the United States District Court for the Middle District
SMITH, OWEN, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, CIRCUIT JUDGE.
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.
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.
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.
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.
remaining jurors returned to the courtroom, and the district
court gave the following explanation and curative
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.
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. ...