                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                              JAN 23, 2009
                               No. 08-14257                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                  D. C. Docket No. 07-00374-CR-T-26-MSS

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

MICHAEL S. CLARKE,

                                                           Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                       _________________________

                              (January 23, 2009)

Before BLACK, WILSON and FAY, Circuit Judges.

PER CURIAM:

     Michael Clarke appeals his conviction for conspiracy to possess cocaine and
methamphetamine with intent to distribute, in violation of 21 U.S.C. § 846. On

appeal, Clarke argues that one juror’s statements to another juror and to the bailiff

in the presence of additional jurors tainted the jury as a whole such that he did not

receive an impartial jury of his peers. The juror stated that he was concerned about

being recognized by trial spectators. Clarke argues that the juror’s fear created a

prejudicial inference that Clarke associated with dangerous people.1

           In United States v. Dominguez, 226 F.3d 1235 (11th Cir. 2000), we

affirmed the district court’s handling of potentially tainted jurors. Clarke notes

that, in Dominguez, the district court asked the defendant’s counsel if there were

additional questions counsel wanted the district court to ask the defendant, see id.

at 1246, while the district court in this case did not ask a similar question. Clarke

argues for the first time on appeal that the district court should have issued a

curative instruction that the jury should keep an open mind. Additionally, Clarke

argues that the district court was required to conduct a more searching inquiry into


       1
          Clarke asserts for the first time on appeal that the conversation between the two jurors
about the first juror’s concerns violated their duty not to begin deliberating before all the
evidence was entered. Further, Clarke argues that the other jurors who overheard the
conversation violated their duty to report that conversation to the district court. Because Clarke
raises these issues for the first time on appeal, we review them for plain error. Johnson v. United
States, 520 U.S. 461, 466-67, 117 S. Ct. 1544, 1548-49 (1997). The district court did not plainly
err in refusing to grant a mistrial based on possible premature jury deliberation because no
evidence suggested that such deliberation had occurred. Furthermore, the court did not plainly
err in failing to investigate the failure of other jurors to report the misconduct because the
immediate investigation of the potential misconduct based on the bailiff’s report made any other
failure to report harmless.

                                                 2
potential prejudice and that the court failed to ensure that the second juror had not

made a determination of Clarke’s guilt. Further, Clarke argues that the district

court should have investigated why the other jurors did not report to the court that

they overheard discussion of the case. Therefore, Clarke argues he should receive

a new trial.

      We review the district court’s response to allegations of juror misconduct

for abuse of discretion. Id. When an issue was not raised before the district court,

we review for plain error. United States v. Heath, 419 F.3d 1312, 1314 (11th Cir.

2005) (per curiam). Plain error exists if there was “(1) error, (2) that is plain, and

(3) affects substantial rights. If all three conditions are met, an appellate court

may then exercise its discretion to notice a forfeited error, but only if (4) the error

seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. (internal quotation marks and citation omitted).

      Every defendant in a serious criminal prosecution has the right to trial by

“an impartial jury.” U.S. Const. amend. VI. Jury misconduct can be based on

outside influences or internal misconduct. Dominguez, 226 F.3d at 1246. “[T]he

more serious the potential jury contamination, especially where alleged extrinsic

influence is involved, the heavier the burden to investigate.” United States v.

Harris, 908 F.2d 728, 734 (11th Cir. 1990) (internal quotation marks and citation



                                            3
omitted). Internal misconduct includes premature deliberations and bias against

the defendant. Dominguez, 226 F.3d at 1246. A district court’s discretion is

broadest when dealing with internal jury misconduct. Id.

      The district court is in the best position to determine whether the jury is

capable of following its instructions. Id. at 1248. “We presume that a jury

follows the court’s instructions.” United States v. Shenberg, 89 F.3d 1461, 1472

(11th Cir. 1996).

      Here, after dismissing the tainted juror, the district court thoroughly

questioned each of the remaining jurors individually to determine whether each

juror could decide the case only on the evidence presented at trial. The district

court determined that the jury would be impartial. Moreover, the district court

repeatedly instructed the jury that the verdict must be based on the evidence

presented at trial. The district court was in the best position to determine if

additional instruction was necessary.

      The district court did not abuse its discretion in investigating any potential

taint of the jurors. Furthermore, the court did not plainly err by determining that a

curative instruction for the jury to “keep an open mind” was unnecessary, nor did

the court plainly err by choosing not to investigate further why the other jurors did

not report the conversation they overheard.



                                           4
                                 CONCLUSION

      Upon review of the record and the parties’ briefs, we discern no reversible

error. Accordingly, we affirm Clarke’s conviction.

      AFFIRMED.




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