     Case: 16-31043    Document: 00514236673       Page: 1   Date Filed: 11/14/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit

                                    No. 16-31043                        FILED
                                                                November 14, 2017
                                                                   Lyle W. Cayce
UNITED STATES OF AMERICA,                                               Clerk

             Plaintiff - Appellee

v.

LARRY W. KELLY, JR., also known as Larry Kelly, also known as Larry W.
Kelly, also known as Larry Kelly, Jr.,

             Defendant - Appellant




                 Appeal from the United States District Court
                     for the Middle District of Louisiana


Before SMITH, OWEN, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
      Larry 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.
                                         I.
      After a 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).
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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.
      The 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.
      The 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.
      The remaining jurors returned to the courtroom, and the district court
gave the following explanation and curative instruction:
      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
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      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.
      Approximately 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. Neither side offered specific
questions, but the defense requested the opportunity “to suggest additional
questions on an individual basis,” which the court allowed.
      After the jury’s verdict was announced, the district court proceeded to
call the jurors to the bench individually and—out of earshot of the others—
question each about the effect of the alternate’s presence on their deliberations.
The court said the following (or something nearly identical) to each juror:
      Now you understand that I excused . . . the alternate in this case. And I
      instructed you all to begin your deliberations anew after her departure,
      and I instructed you all to not consider any discussions or participations

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                                   No. 16-31043
        she may have offered during the course of her presence in the jury room.
        Were you able to abide by that rule?
Each juror answered, “Yes.” The court also asked each juror something to the
effect of: “And did you reach this verdict solely on the basis of the deliberations
among the twelve of you?” Each juror answered “yes” to this question as well.
        The defense interjected only once, asking the jury’s foreman whether the
jury took a vote before the alternate was excused. The foreman explained that
no vote was taken while the alternate was still in the room. Although most
jurors simply answered “yes” to each of the court’s questions, one juror
volunteered that the jury was able to disregard any comments or influence by
the alternate, “[b]ecause I don’t think [the alternate] stated anything anyway.”
After questioning each of the twelve jurors, the court thanked and excused
them.
        Following the verdict, Kelly moved the court for a new trial, arguing that
under Federal Rule of Criminal Procedure 24(c), “the Court [had] an obligation
to prevent the alternate juror from discussing the case [with] any person,” and
pointing out that “the alternate juror actually engaged in preliminary
deliberations with the panel” in violation of Rule 24(c). Kelly argued that “[i]n
a situation where the alternate juror certainly participated in deliberations, it
is impossible to retroactively cure the damage. Once the regular jury panel has
heard the opinion of the alternate with regards to the guilt of the defendant, it
cannot be unheard.” The district court denied Kelly’s motion, concluding that
a Rule 24(c) violation does not require a mistrial or new trial unless the error
prejudices the defendant. In finding that Kelly suffered no prejudice the court
emphasized that: 1) the court gave a curative instruction, 2) the jurors
unequivocally stated that the verdict was not influenced by the alternate, 3)
the alternate was only briefly in the jury room, and 4) the evidence
overwhelmingly supported Kelly’s guilt.

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                                   No. 16-31043
      After denying a new trial, the district court sentenced Kelly to 262
months in prison and a three-year term of supervised release. Kelly now
appeals, arguing that the district court abused its discretion by denying his
motions for a mistrial and a new trial.
                                         II.
      We review a district court’s denial of motions for a mistrial and for a new
trial for abuse of discretion. See United States v. Pratt, 807 F.3d 641, 645 (5th
Cir. 2015) (new trial); United States v. Ebron, 683 F.3d 105, 128 (5th Cir. 2012)
(mistrial).
                                        III.
                                         A.
      As an initial matter, we agree that the alternate’s presence during
deliberations violated Rule 24(c). That rule permits district courts to “impanel
up to 6 alternate jurors to replace any jurors who are unable to perform or who
are disqualified from performing their duties.” Fed. R. Crim. P. 24(c)(1). A
district court may retain these alternate jurors after the jury retires to
deliberate, but the court must “ensure that a retained alternate does not
discuss the case with anyone until that alternate replaces a juror or is
discharged.” Fed. R. Crim. P. 24(c)(3). Further, “[i]f an alternate replaces a
juror after deliberations have begun, the court must instruct the jury to begin
its deliberations anew.” Id.
      A previous version of Rule 24(c), in place until 1999, required district
courts to dismiss any alternate jurors following trial, prohibiting their
retention during deliberations. Under the old rule, courts held that “[t]he
presence of alternate jurors during jury deliberations is no doubt a deviation
from Rule 24(c).” United States v. Olano, 507 U.S. 725, 737 (1993); see also
United States v. Ottersburg, 76 F.3d 137, 139 (7th Cir. 1996) (“[T]he failure to
dismiss the two alternate jurors was a clear violation of . . . Rule 24(c).”); United
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States v. Allison, 481 F.2d 468, 470–71 (5th Cir. 1973). The 1999 amendment
recognized the impracticality of requiring immediate dismissal of alternates
following a trial, noting that “there may be cases where it is better to retain
the alternates when the jury retires, insulate them from the deliberation
process[,] [a]nd have them available should one or more vacancies occur in the
jury.” Fed. R. Crim. P. 24, advisory committee’s note to 1999 amendment. As a
result, Rule 24(c), in its current form, permits retaining alternates throughout
deliberations.
      Because it prohibits only discussion, the text of the modern rule could
arguably permit an alternate’s presence in the jury room, so long as the
alternate did not participate in the deliberations. But other circuits have
uniformly continued to apply the earlier understanding of the rule, citing pre-
amendment caselaw to describe the rule’s scope and continuing to note that
the presence of alternates during deliberations is prohibited. See, e.g., United
States v. Myers, 280 F.3d 407, 412 (4th Cir. 2002) (“There is no doubt that the
presence of alternate jurors during jury deliberations is a deviation from Rule
24(c).”); United States v. Aguilar, 743 F.3d 1144, 1148 (8th Cir. 2014) (“The
parties—and the district court—agree that the alternate’s presence during
jury deliberations violated Federal Rule of Criminal Procedure 24(c)(3).”);
United States v. Li Xin Wu, 668 F.3d 882, 887 (7th Cir. 2011) (noting it would
be a Rule 24(c) violation if “alternate jurors were in fact present with the jury
when deliberations began”); United States v. Yousef, 357 F. App’x 147, 148 (9th
Cir. 2009) (holding that two alternates’ presence during deliberations is a
curable violation of Rule 24(c)).
      This understanding is consistent with the Advisory Committee notes to
the 1999 amendment. The Committee explained that “there may be cases
where it is better to retain the alternates when the jury retires, insulate them
from the deliberation process[,] [a]nd have them available should one or more
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                                  No. 16-31043
vacancies occur in the jury.” Fed. R. Crim. P. 24, advisory committee’s note to
1999 amendment (emphasis added). The Committee stressed:
            [T]o protect the sanctity of the deliberative process, the rule
      requires the court to take appropriate steps to insulate the alternate
      jurors. That may be done, for example, by separating the
      alternates from the deliberating jurors and instructing the
      alternate jurors not to discuss the case with any other person until
      they replace a regular juror.
Id. (emphasis added). As supporting authority for these warnings, the
Committee cited pre-amendment caselaw holding that a district court violates
Rule 24(c) by permitting alternates to sit in on deliberations. See id. (citing
Olano, 507 U.S. 725; United States v. Houlihan, 92 F.3d 1271, 1286–88 (1st
Cir. 1996)). In short, there is no indication that the 1999 Amendment changed
the longstanding rule that alternates may not be present during deliberations.
Sending the alternate into the jury room was therefore unintended error, as
quickly recognized by the district court.
                                        B.
      Though the alternate should not have been present in the jury room, the
error does not necessarily undermine the verdict. An alternate’s mere presence
during deliberations is not the sort of inherently prejudicial error that requires
per se reversal. Olano, 507 U.S. at 737 (“[T]he presence of alternate jurors
during jury deliberations is not the kind of error that ‘affect[s] substantial
rights’ independent of its prejudicial impact.” (quoting Fed. R. Crim. P. 52(b));
see also United States v. Houlihan, 92 F.3d 1271, 1286 (1st Cir. 1996) (“Olano
teaches that a violation of Rule 24(c) is not reversible error per se[.]”); United
States v. Huntress, 956 F.2d 1309, 1314 n.3 (5th Cir. 1992) (noting that, under
pre-Olano Fifth Circuit precedent, “a violation of Rule 24(c) would not require
reversal unless there was a reasonable possibility that the violation had an
effect on the verdict”). Rather, “[a] mistrial . . . is only warranted if there is a
reasonable possibility that the district court’s violation of Rule 24(c) actually
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                                    No. 16-31043
prejudiced [the defendant] by affecting the jury’s final verdict.” United States
v. Acevedo, 141 F.3d 1421, 1424 (11th Cir. 1998) (citing United States v. Allison,
487 F.2d 339 (5th Cir. 1973)). In denying Kelly’s motions for mistrial and a new
trial, the district court concluded that the temporary presence of the alternate
did not impact the jury’s verdict and that the curative instruction sufficiently
dispelled any risk of prejudice. This ruling was not an abuse of discretion.
      The record supports this conclusion. The district judge’s curative
instruction was thorough and clear. Other circuits have found curative
instructions adequate to ameliorate prejudice caused by similar oversights. In
Acevedo, the district court forgot to dismiss alternate jurors when the jury
retired to deliberate, and, as a result, the alternates actively participated in
deliberations for an hour. 141 F.3d at 1422–23. The jury, including the two
alternates, elected one of the alternates the foreperson and came to a guilty
verdict before the error was discovered. Id. Nonetheless, the Eleventh Circuit
held that “[i]n light of the district court’s clean slate instruction, . . . there [wa]s
no reasonable possibility that the participation of the alternates in the jury’s
initial deliberations prejudiced Acevedo at trial, and that the court’s oversight
of Rule 24(c) [wa]s therefore harmless error.” Id. at 1427. Acevedo provides
further persuasive support for affirming the district court’s ruling here.
      Finally, we note that, absent any indication that the alternate juror
participated in deliberations, the potential prejudice here is similar to when a
juror must be replaced by an alternate. As noted, Rule 24(c)(3) contemplates
such a substitution, and instructs district courts to “instruct the jury to begin
its deliberations anew.” There is no reason why the district court’s analogous
instruction and individualized polling of the jury would not suffice here.
Accordingly, the district court did not abuse its discretion in denying Kelly’s
motions for mistrial and a new trial.


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                          No. 16-31043
                               IV.
 The judgment of conviction and sentence is AFFIRMED.




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