                              In the

United States Court of Appeals
                For the Seventh Circuit

No. 12-1733

U NITED S TATES OF A MERICA,
                                                   Plaintiff-Appellee,
                                  v.

G EOFFRIE A LLEN L EE D ILL,
                                               Defendant-Appellant.


              Appeal from the United States District Court
      for the Southern District of Indiana, Indianapolis Division.
             No. 1:11-cr-0026—Tanya Walton Pratt, Judge.



      A RGUED D ECEMBER 7, 2012—D ECIDED A PRIL 4, 2013




  Before P OSNER, W OOD , and W ILLIAMS, Circuit Judges.
  W ILLIAMS, Circuit Judge. Officers found methamphet-
amine and a loaded .38 Cobra handgun on Geoffrie
Allen Lee Dill during a routine traffic stop and he
was charged with various drug and firearm offenses.
Following a two-day jury trial, the jury found him
guilty. Dill’s sole argument on appeal is that the dis-
trict court committed reversible error when it allowed
an alternate juror to be present in the jury deliberation
2                                              No. 12-1733

room. Dill’s attorney did not object to the alternate’s
presence at the time, but now argues that it affected his
substantial rights at trial. Federal Rule of Criminal Pro-
cedure 24(c)(3) provides that a “court may retain alter-
nate jurors after the jury retires to deliberate” but the
court “must ensure that a retained alternate does not
discuss the case with anyone.” Though the parties
agree that the rule prohibits alternates from deliber-
ating with the regular jury, Dill has offered no evidence
to suggest that the alternate juror participated in delib-
erations. Since there was no plain error here, we affirm
Dill’s conviction.


                   I. BACKGROUND
  Geoffrie Allen Lee Dill was charged with possession
with intent to distribute five grams or more of metham-
phetamine in violation of 21 U.S.C. § 841(a)(1), posses-
sion of a firearm during and in relation to a drug traf-
ficking crime in violation of 18 U.S.C. § 924(c), and pos-
session of a firearm by a previously convicted felon in
violation of 18 U.S.C. §§ 922(g)(1), 924(e)(1). The case
proceeded to a jury trial, and shortly before closing argu-
ments the district court finalized jury instructions with
both parties. After closing arguments, the district court
read the final written instructions to the jury and then
asked counsel to approach the bench.
  After observing that “[w]e did not give them instruc-
tions to tell the alternate what [she] should do,” the
district court asked the parties if they had any objec-
tion to leaving the alternate in the jury room with an
No. 12-1733                                             3

instruction that the alternate may not deliberate. The
prosecutor stated that he did not think “it’s gen-
erally done,” but neither party objected. The district
court explained that it would give an oral instruction
that the alternate juror could not deliberate and also
add it to a packet of written instructions that the
jurors would take to the deliberation room.
  In open court, the district court gave the following
final instruction:
   Alternate juror, you are permitted to be present
   in the jury room during deliberation. However,
   you may not participate in deliberations or
   render a vote on the verdict unless you are
   called upon to replace a regular member of the
   panel, and any replacement will be done here
   in open court.
Immediately after giving this last instruction, the jury
retired for deliberations and was given a written set
of instructions. But the deliberation instruction cov-
ering the alternate juror’s role was inadvertently omit-
ted. The jury did not submit any notes or questions to
the district court during its deliberations. A little over
an hour later, the jury returned its verdict finding Dill
guilty on all three counts. When the jury was polled,
all twelve regular jurors confirmed the verdicts read by
the foreperson, but the alternate juror was not polled
and remained silent. The district court subsequently
sentenced Dill to a term of 420 months, and he now
appeals his conviction.
4                                                  No. 12-1733

                       II. ANALYSIS
  The sole issue on appeal is whether Dill should get a
new trial because the district court allowed the alternate
juror to sit in the deliberation room. Because Dill’s
attorney failed to object at trial (or in post-trial motions)
to the presence of the alternate in the deliberation
room, we review the matter for plain error.1 United States
v. Ottersburg, 76 F.3d 137, 138 (7th Cir. 1996).
  Our consideration of this issue is guided by the
Supreme Court’s analysis in United States v. Olano, 507
U.S. 725 (1993), where two alternate jurors were
allowed in the deliberation room but instructed not to
participate in the jury’s discussions. In holding that
the alternate jurors’ presence, without actual partici-


1
  Dill argues that harmless error is the proper standard
of review. He claims that neither he nor his attorney had a
meaningful opportunity to object to the presence of the alter-
nate juror because the district court assured counsel that the
jury would be given a written limiting instruction. But we
rejected such a similar argument in United States v. Robinson,
663 F.3d 265, 268 n.1 (7th Cir. 2011) (rejecting argument that
alleged omission of written instruction should be reviewed
for harmless error where no objection was made to the
district court, explaining that “Rule 51(b) of the Federal Rules
of Criminal Procedure contains an exception ‘if a party does
not have an opportunity to object to a ruling or order,’ but
this exception does not apply when a defendant could
have objected in enough time ‘to enable the district court to
correct its error in a timely manner’ ”).
No. 12-1733                                                5

pation, did not affect the substantial rights of the de-
fendants, the Court set forth a three-part test for deter-
mining when errors may be corrected even though
they were not brought to the district court’s attention.
On plain error review, we must determine whether:
(1) there was an unwaived error; (2) the error was
“plain”; and (3) the plain error affected Dill’s substantial
rights. See 507 U.S. at 732-36. If all three requirements
are satisfied, we may correct the plain error, but need
not exercise that authority. Id. Plain error should be
corrected if the error “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.”
Id. at 736 (citations and internal quotation marks omitted).
  Rule 24(c) of the Federal Rules of Criminal Procedure
provides:
    The court may retain alternate jurors after the
    jury retires to deliberate. The court must ensure
    that a retained alternate does not discuss the
    case with anyone until that alternate replaces a
    juror or is discharged. If an alternate replaces a
    juror after deliberations have begun, the court
    must instruct the jury to begin its deliberations
    anew.
Fed. R. Crim. P. 24(c)(3). Dill argues, and the govern-
ment agrees, that the district court’s decision to allow
the alternate juror into the deliberation room violated
Rule 24(c). See United States v. Li Xin Wu, 668 F.3d 882, 887
(7th Cir. 2011). So like the Court in Olano, we assume
without deciding that the error in the case was plain.
See Olano, 507 U.S. at 737; Li Xin Wu, 668 F.3d at 887
6                                                  No. 12-1733

(reaffirming that a violation of Rule 24(c) is renewed for
plain error). The only remaining issue under the Olano
framework is whether the error resulted affected Dill’s
substantial rights. Dill bears the burden of persuasion
on this issue, Olano, 507 U.S. at 734, but he has not
shown that his substantial rights were affected.
  Olano explained that the alternate jurors’ presence in
the deliberation room, while error, did not affect the
defendants’ substantial rights because they “made no
specific showing that the alternate jurors . . . either partici-
pated in the jury’s deliberations or ‘chilled’ the delibera-
tion by the regular jurors.” 507 U.S. at 739. The same can
be said in this case. Dill has not alleged—nor has he
pointed to anything on the record indicating—that the
alternate juror actually participated in the jury’s delib-
erations in any way. In Li Xin Wu, we noted that a de-
fendant “would meet the [plain error] standard if he
could show that alternate jurors were in fact present
with the jury when deliberations began” and that “sub-
stantive participation of alternates ha[d] taken place.”
668 F.3d at 887 (internal citations and quotation marks
omitted). We recognize that the alternate in this case
was present during the jury’s deliberations, but Dill
has still failed to show how the alternate’s mere
presence in the room was prejudicial to his case. More-
over, the district court explicitly instructed the alternate
not to participate in deliberations and so without any
indication that she somehow participated either “verbally
or through body language,” Olano, 507 U.S. at 739, we
have no basis to infer that her presence was prejudicial
to Dill.
No. 12-1733                                              7

  Dill’s specific reliance on United States v. Ottersburg
also does not help him since it is factually distinct. In
Ottersburg, the district court permitted two alternates
to deliberate with a jury for over nine hours, and we
agreed that the defendant had shown prejudice. 76 F.3d
at 140. But unlike here, the alternates in Ottersburg
were ultimately polled along with the jury and acknowl-
edged the verdict as their own, refuting any sugges-
tion that they remained unengaged in deliberations in
the jury room the entire time. Id. In this case, the alter-
nate juror was not directly polled to affirm the guilty
verdict as in Ottersburg. She also was in the deliberation
room for far less time and gave no indication to the
court or the parties that she ever participated in delib-
erations. Moreover, the alternates in Ottersburg were
never explicitly instructed to refrain from deliberating
with the regular jurors. Here, the district court verbally
instructed all of the jurors, including the alternate, that
the alternate could not engage in deliberations, and
this instruction occurred right before the jury retired to
deliberate. We generally presume that jurors and alter-
nates follow the court’s instructions, and we do not see
any reason to question their adherence to the court’s
oral instructions in this case. See id. So Dill has failed
to establish that the alternate juror’s presence in the
deliberation room affected his substantial rights and
the outcome of the proceedings.
8                                         No. 12-1733

                 III. CONCLUSION
  For the foregoing reasons, the judgment of the dis-
trict court is A FFIRMED.




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