     Case: 13-30208       Document: 00512600652         Page: 1     Date Filed: 04/17/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                     No. 13-30208
                                   Summary Calendar
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                             April 17, 2014
UNITED STATES OF AMERICA,
                                                                            Lyle W. Cayce
                                                                                 Clerk
                                                  Plaintiff - Appellee

v.

JOHNNY LAYNE,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:12-CR-141-2


Before JONES, BARKSDALE, and HAYNES, Circuit Judges.
PER CURIAM: *
       Following his jury-trial conviction for assaulting a federal officer, in
violation of 18 U.S.C. § 111, while a federal prisoner, Johnny Layne contends
the district court violated 28 U.S.C. § 753(b) (mandating verbatim recording of
“all proceedings in criminal cases had in open court”), by conducting an
untranscribed, in-chambers discussion with a juror.




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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                                  No. 13-30208

      Along that line, before the case was submitted to the jury, that juror had
sent the judge a note revealing he had consulted a dictionary for definitions of
“attack” and “severe”. After receiving the note, the judge: spoke with the
parties; spoke with the juror and dismissed him; reported to the parties the
substance of the conversation with the juror; and explained the juror had been
dismissed. All of this had been without objection.
      Appeal of this claim has arguably been waived because defense counsel
affirmatively stated there was no objection to the juror’s dismissal. See Rogers
v. Quarterman, 555 F.3d 483, 490 (5th Cir. 2009) (holding an affirmative
statement of “no objection” waived any error in the admission of evidence). In
any event, we will review for plain error. Under the plain-error standard,
Layne must show a clear or obvious forfeited error that affected his substantial
rights. E.g., Puckett v. United States, 556 U.S. 129, 135 (2009). Even if he
shows such reversible plain error, this court has the discretion whether to
correct the error, and should do so only if it seriously affects the fairness,
integrity, or public reputation of the proceedings. Id.
      This court has held a “charge conference in chambers was not in open
court” and thus not subject to § 753(b). United States v. Jenkins, 442 F.2d 429,
438 (5th Cir. 1971).      Although Jenkins does not address in-chambers
conversations with a juror, it is sufficient to show any error in failing to record
the conversation in this instance was neither clear nor obvious. See Puckett,
556 U.S. at 135. Moreover, the district court has broad discretion in dealing
with possible outside influences on a jury and was permitted to handle the
situation as it did, “in the least disruptive manner possible”. United States v.
Ramos, 71 F.3d 1150, 1153 (5th Cir. 1995).
       Layne claims that, without a transcript, he cannot be sure the court
considered whether the dismissed juror’s dictionary definitions contaminated



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                                 No. 13-30208

the jury’s deliberation. Contrary to Layne’s claim, the dismissed juror sought
the court approval prior to discussing the dictionary definitions with the jury.
Nevertheless, the court gave the jury a curative instruction, which the jury is
presumed to have followed. See United States v. Davis, 609 F.3d 663, 677 (5th
Cir. 2010).
      AFFIRMED.




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