PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 95-5536

JAMES KEVIN NELSON,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Benson E. Legg, District Judge.
(CR-94-262-L)

Argued: September 24, 1996

Decided: December 18, 1996

Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge Niemeyer wrote the opinion,
in which Judge Michael and Judge Motz joined.

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COUNSEL

ARGUED: Larry Allen Nathans, Baltimore, Maryland, for Appellant.
Jan Paul Miller, Assistant United States Attorney, Greenbelt, Mary-
land, for Appellee. ON BRIEF: Lynne A. Battaglia, United States
Attorney, Greenbelt, Maryland, for Appellee.

_________________________________________________________________
OPINION

NIEMEYER, Circuit Judge:

In connection with his cocaine conspiracy conviction, James Kevin
Nelson contends that the district court erred (1) in refusing to sup-
press $43,000 seized from his shoulder bag when he was arrested, (2)
in failing at any time during his four-day trial to instruct jurors to
refrain from discussing the case with others, and (3) in replacing two
jurors who had holiday travel plans beginning on what would have
been the fifth day of trial. While we find that the district court erred
in failing to instruct jurors to refrain from discussing the case, the
error in the circumstances of this case does not require us to order a
new trial, and we find no merit in the other assignments of error. We
therefore affirm.

I

After his arrest, Omar Grajales, who was a cocaine supplier to the
defendant Nelson, agreed to cooperate with agents of the Drug
Enforcement Administration (DEA). With Grajales' cooperation,
DEA agents arrested Nelson when Nelson came to Grajales' apart-
ment to pick up two kilograms of cocaine. At the time of his arrest,
Nelson was carrying a black shoulder bag.

While Nelson stood with his hands on his head, DEA agents
attempted to check the bag. But because Nelson's hands were on his
head, they could not remove the bag which was slung over his shoul-
der. Unzipping the bag, the agents noticed that it contained money.
At that point, the agents lowered Nelson's hands, removed the bag
from his shoulder, and took Nelson to an upstairs room for question-
ing. Within minutes, a DEA agent searched the bag and found
$43,000, the approximate street price of two kilograms of cocaine and
$1,000 less than the amount which Nelson had earlier agreed to pay
Grajales.

After being advised of his Miranda rights, Nelson confessed to the
agents that he had come to Grajales' apartment to purchase two kilo-
grams of cocaine and that he had purchased a kilogram approximately

                    2
every two to three weeks over the previous year, which he then
divided into one-ounce bags to sell or "front" to his customers.

Nelson filed a pretrial motion to suppress the $43,000 which was
seized from his shoulder bag. After a hearing, the district court denied
the motion and allowed the government at trial to introduce evidence
of the $43,000 seizure. Nelson now contends that the district court's
ruling violated his Fourth Amendment rights, arguing that the DEA
agents did not have a warrant to conduct the search and, because the
DEA agents separated Nelson from his bag and did not search it
immediately, the search was not "incident to arrest."

To protect the safety of arresting officers and to avoid the destruc-
tion of evidence, the Supreme Court has long recognized an exception
to the Fourth Amendment warrant requirement for searches incident
to arrest. See United States v. Edwards, 415 U.S. 800, 807-09 (1974).
Although the "incident to arrest" justification for warrantless searches
does not permit an indefinite delay in a search, see United States v.
Chadwick, 433 U.S. 1, 14-15 (1977) (holding that a search more than
one hour after arrest and at a police station was not within the excep-
tion), the justification does last for a reasonable time after the officers
obtain exclusive control of the container that is to be searched, see
Edwards, 415 U.S. at 805, 807-09 (upholding a ten-hour delay in
search and seizure of clothing where overnight delay was necessary
to purchase replacement clothing for incarcerated defendant); New
York v. Belton, 453 U.S. 454, 462-63 (1981) (approving admission of
cocaine found in a jacket in the back seat of a car even though officers
had removed the suspect from the car before searching the jacket).
Indeed, in a case remarkably similar to that before us, we held specifi-
cally that "when a container is within the immediate control of a sus-
pect at the beginning of an encounter with law enforcement officers,"
the officers can search the container incident to an arrest if (1) the
search is conducted at the scene of the arrest and (2) any delay in the
search is a "reasonable" one. United States v. Han, 74 F.3d 537, 543
(4th Cir.), cert. denied, 116 S. Ct. 1890 (1996); see also United States
v. Litman, 739 F.2d 137, 139 (4th Cir. 1984) (en banc) (upholding
search of a bag immediately after arrest when the bag was no longer
under the suspect's control).

                     3
Nelson contends that in this case the incident-to-arrest exception
does not apply because the risks of danger and destruction of evi-
dence had passed. He argues:

          The search of the bag was not contemporaneous with Mr.
          Nelson's arrest, was not conducted when Mr. Nelson was
          within the same part of the house as the search, was not
          searched within the same room in which it was seized and
          was performed when Mr. Nelson was already handcuffed.

While the need for the incident-to-arrest exception is indeed grounded
on the need to protect law enforcement officers and evidence, the
validity of such a search does not end at the instant the risks justifying
the search come to an end. Even though the warrant exception is well
grounded on the existence of exigent risks attending arrest, the prag-
matic necessity of not invalidating such a search the instant the risks
pass is well accepted. See, e.g., Belton, 453 U.S. at 462 n.5 ("[U]nder
this fallacious theory no search or seizure incident to a lawful custo-
dial arrest would ever be valid; by seizing an article even on the
arrestee's person, an officer may be said to have reduced that article
to his `exclusive control'"). Just as arresting officers need not deter-
mine that the defendant actually have a gun or actually intend to
destroy evidence before conducting a search incident to arrest, they
need not reorder the sequence of their conduct during arrest simply
to satisfy an artificial rule that would link the validity of the search
to the duration of the risks. Pragmatic necessity requires that we
uphold the validity and reasonableness of a search incident to arrest
if the search is part of the specific law enforcement operation during
which the search occurs. And we so held in Han .

In this case, agents arrested Nelson in the front room of an apart-
ment. During the course of that operation they removed his shoulder
bag, took him to a separate upstairs bedroom for questioning, and
searched the bag -- all within a few minutes. The district court did
not err in denying Nelson's motion to suppress the fruits of this
search.

II

Nelson next contends that he should be afforded a new trial
because the district court failed to instruct jurors at any time during

                     4
trial that they should not discuss the case with anyone outside the
courtroom and that they should not discuss the case among them-
selves until they retire to deliberate.

While the district court did admonish the jury in its final instruc-
tions that "anything that you may have seen or heard about this case
outside the courtroom is, of course, not evidence and must be entirely
disregarded," our review of the record and the government's conces-
sion confirms that at no time did the district court provide the jurors
with a proper instruction about discussing the case with others. It is
also apparent that Nelson did not request such an instruction, nor did
he object to the court's failure to instruct the jury about their conduct.
Moreover, we have been made aware of no evidence that any juror
discussed this case with anyone outside of the courtroom or with
other jurors before deliberation.

To assure that jurors properly carry out their role as factfinders in
a trial, the trial judge must instruct them on the nature of their task,
its limitations, and proper conduct while serving as jurors. It is
accordingly customary to advise jurors at the beginning of trial that
they are the factfinders, that they will apply those facts to the law
given to them by the court, and that they are to find those facts solely
from evidence presented to them in the courtroom. And to assure that
the jury's verdict is rendered solely on the facts presented in the court
and from deliberation of only the jurors sworn to hear the case, the
jury must be instructed in substance:

          I instruct you that during the trial you are not to discuss the
          case with anyone or permit anyone to discuss it with you.
          Until you retire to the jury room at the end of the case to
          deliberate on your verdict, you simply are not to talk about
          this case.

In this case no such prophylactic instruction was given. While Nel-
son argues for the first time on appeal that he should receive a new
trial because of its omission, he forfeited the error at trial by not rais-
ing it. And rather than arguing now that prejudice resulted, he main-
tains that the error was fundamental and that he is entitled to a new
trial without demonstrating any prejudice, referring us to United
States v. Williams, 635 F.2d 744, 745-46 (8th Cir. 1980).

                     5
Federal Rule of Criminal Procedure 52(b) provides that we may
correct error that was forfeited during trial so long as the error was
"plain" and "affect[s] substantial rights." See United States v. Olano,
507 U.S. 725, 732 (1993). And we should not exercise the discretion
to correct such plain error unless it "seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings." Id. (citations
and internal quotation omitted). To demonstrate that plain error
affected substantial rights, a defendant must carry the burden of per-
suading the court that the error affected the outcome of the trial. Id.

In this case, Nelson argues that prejudice must be presumed
because the error was of a category that deprives the defendant of
basic protections without which "a criminal trial cannot reliably serve
its function as a vehicle for determination of guilt or innocence."
Arizona v. Fulminante, 499 U.S. 279, 310 (1991) (quoting Rose v.
Clarke, 478 U.S. 570, 577-78 (1986)).

We cannot agree that the error in this case was so fundamental as
to require a new trial regardless of the error's effect. The rule requir-
ing district courts to instruct jurors is a prophylactic measure. If a pro-
phylactic instruction is not given but the harm that it was designed to
forestall never occurs, it would be pointless to order a new trial sim-
ply to have the instruction given. This conclusion is consistent with
the analogous holding by the Supreme Court in Olano, where the
Court found harmless the error of allowing an alternate juror to be
present with the jury during deliberations. In refusing to require a new
trial in that circumstance, the Supreme Court noted:"If no harm
resulted from this intrusion of an alternate juror into the jury room,
reversal would be pointless." Olano, 507 U.S. at 738 (quoting United
States v. Watson, 669 F.2d 1374, 1391 (11th Cir. 1982)).

While our conclusion may be at odds with the Eighth Circuit's
holding in Williams, we note that the Eighth Circuit decided that case
before the Supreme Court's decision in Olano. In concluding that the
error in failing to instruct the jury about discussions outside the court
should be reviewed for prejudicial impact, we join the Seventh and
Fifth Circuits. See United States v. Davis, 15 F.3d 1393, 1410 (7th
Cir.), cert. denied, 115 S. Ct. 250 (1994); Rotolo v. United States, 404
F.2d 316, 317 (5th Cir. 1968).

                     6
Since Nelson has failed to carry his burden of persuading us that
the district court's error was prejudicial, we conclude that the district
court's error in failing to instruct the jury about its conduct during
trial was harmless.

III

Finally, Nelson contends that the district court abused its discretion
in dismissing two jurors during trial because their travel plans poten-
tially conflicted with jury deliberations. He contends that the district
court "had no evidence before it which justified the dismissal of two
African American jurors without some investigation into possible
alternatives."

On the morning of the fourth day of trial, Thursday, December 22,
1994, the district court received notes from two jurors that they had
holiday travel plans beginning the next day, Friday, December 23.
Concerned that the jurors would feel pressure to render a verdict
quickly, the court solicited views from the parties on whether to
replace the two jurors with alternates. While the government attorney
agreed to substitute the alternates, counsel for the defendant expressed
the preference that the jury remain as constituted. The defendant sug-
gested that the jury be allowed to separate during the few days that
the two jurors were traveling and resume the case on December 29.
The court expressed its preference, however, to have the jury deliber-
ate on consecutive days, if possible. Noting that both of the jurors
concerned were black and expressing its sensitivity to the racial com-
position of the jury, the court determined that it would be prudent to
speak with both jurors about their travel plans before making its deci-
sion.

The first juror informed the court that she and her husband would
be leaving at the end of the day on December 23 to take a long-
planned yearly trip to Virginia and North Carolina and that they
would be gone from December 23 through December 28. The second
juror informed the court that he had an airline ticket to leave for
Atlanta the next day and would need to leave at about noon. He stated
that he would return December 27. The court concluded that to keep
the jurors on the case would place pressure on them to reach a verdict
in time to meet their travel plans and accordingly replaced them with

                     7
the alternates. The court noted that even though it was excusing two
black jurors, four black jurors remained.

The jury as reconstituted with the two alternate jurors began its
deliberations on December 22 and later that afternoon reached a
guilty verdict.

Nelson contends that (1) the court did not have adequate informa-
tion to reach the conclusion that the jury would feel rushed to reach
a verdict and (2) even if there were such evidence, that the court
failed, particularly in light of the race of the two jurors, to explore
reasonable alternatives before substituting alternate jurors.

A defendant has a reasonable expectation that, barring unforeseen
circumstances, he will be tried by the jury selected. The trial judge is
not at liberty to interfere with the jury selected unless it has adequate
cause. Federal Rule of Criminal Procedure 24(c) provides that alter-
nate jurors shall replace jurors who, before deliberation commences,
"become or are found to be unable or disqualified to perform their
duties." While the court's decision to replace a juror with an alternate
juror must be for a legally relevant reason and have a factual basis,
its judgment to do so is reviewed for abuse of discretion. See United
States v. Hayden, 85 F.3d 153, 156-57 (4th Cir. 1996) (reviewing for
abuse of discretion a refusal to grant mistrial, instead replacing juror
with alternate); United States v. Acker, 52 F.3d 509, 515 (4th Cir.
1995) (reviewing for abuse of discretion a decision to dismiss juror
and proceed with eleven). A finding that a district court acted on an
irrelevant legal basis or lacked factual support for the conclusion that
a juror was unable or disqualified to perform his duty amounts to a
finding that the court abused its discretion. To obtain a new trial,
however, the objecting party must nevertheless establish prejudice.

In this case the district court was presented with facts during trial
indicating that two jurors would be required to depart on holiday
travel during the next day. With reasonable foresight, the court con-
cluded that the jury, confronted with that type of schedule, might be
influenced by the pressure of completing deliberations and reaching
a verdict before it became time for two jurors to leave. While it is
undoubtedly true that the court could have considered other alterna-
tives to further the important goal of keeping the original jury

                     8
together, in this case it considered all those suggested by the defen-
dant and rejected them.

Nelson suggested first that two alternate jurors deliberate with the
jury and be impaneled as regular jurors only as it might become nec-
essary. The district court rejected that alternative because it was con-
trary to Federal Rule of Criminal Procedure 24(c) and the holding in
Olano, 507 U.S. at 737. Nelson also suggested that the court could
require the jury to deliberate into the evening of December 22. But
the court rejected that idea because it had earlier announced a sched-
ule on which another juror had relied in making plans for the evening
of December 22. Moreover, the pressure to reach a verdict that eve-
ning to enable the two jurors to leave the next day would not be sub-
stantially minimized. Finally, Nelson suggested that the court adjourn
trial until the two jurors returned after December 28. The court con-
sidered that possibility but concluded that "it's much better to have
the jury deliberate on consecutive days, if we can do it."

While we reaffirm the importance of keeping the originally
selected jury together, that right to have the selected jury render the
verdict is not absolute and is subject to the inevitable vagaries of the
many trial participants' complex lives. In the circumstances of this
case, we cannot conclude that the district court abused its discretion.

Nelson argues that the court's standard for replacing juries should
be heightened in the circumstances of this case because two black
jurors were being replaced with two white jurors. Nelson makes no
claim, however, that the court acted in any respect because of the race
of either the replaced jurors or the alternate jurors. Although the trial
court candidly said that it was "sensitive to the issue," it correctly
noted that "no defendant has any entitlement to a jury composed of
individuals from any given race." Cf. Batson v. Kentucky, 476 U.S.
79, 85-86 (1986) (holding that while a defendant has no right to a jury
composed of persons of his own race, he does have a right to a jury
selected without racial discrimination). It was only coincidence that
two jurors having travel plans happened to be black and that the next
two alternates were white. In the absence of any evidence or allega-
tion that the court acted because of race in replacing jurors with alter-
nates, we find no basis to conclude that the court's discretion should

                     9
be exercised differently when it is considering for racially neutral rea-
sons the replacement of black jurors with white alternates.

For the reasons given, we accordingly affirm the judgment of the
district court.

AFFIRMED

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