                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                          FILED
                            FOR THE NINTH CIRCUIT                            DEC 10 2009

                                                                         MOLLY C. DWYER, CLERK
                                                                          U .S. C O U R T OF APPE ALS

UNITED STATES OF AMERICA,                        No. 08-50258

             Plaintiff - Appellee,               D.C. No. 2:06-cr-00660-GAF

  v.
                                                 MEMORANDUM *
IBRAHIM A. YOUSEF,

             Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Central District of California
                     Gary A. Feess, District Judge, Presiding

                         Argued and Submitted July 9, 2009
                               Pasadena, California

Before: WARDLAW, RAWLINSON and N.R. SMITH, Circuit Judges.

       Appellant Ibrahim A. Yousef (Yousef) challenges the district court’s denial

of his motion for a mistrial and motion for a new trial premised on the participation

of two alternate jurors during jury deliberations in violation of Federal Rule of

Criminal Procedure 24(c).



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      “We generally review the district court’s denial of a motion for a mistrial for

abuse of discretion.” United States v. Banks, 514 F.3d 959, 973 (9th Cir. 2008)

(citations omitted). “We [also] review for abuse of discretion a district court’s

denial of a motion for a new trial.” United States v. Moses, 496 F.3d 984, 987 (9th

Cir. 2007) (citations omitted).

      The participation of the alternate jurors in jury deliberations was no doubt a

violation of Federal Rule of Criminal Procedure 24(c). See United States v. Olano,

507 U.S. 725, 737 (1993). However, the mere presence of alternate jurors does not

warrant a reversal, given appropriate jury instructions. See id. at 740-41. When a

district court instructs a newly reconstituted jury to begin deliberations anew, we

should presume that the jury’s deliberations conformed to that instruction. See

United States v. McFarland, 34 F.3d 1508, 1514 (9th Cir. 1994); see also Olano,

507 U.S. at 740 (“It is the almost invariable assumption of the law that jurors

follow their instructions.”) (citation and alteration omitted). The district court,

therefore, did not abuse its discretion when it denied Yousef’s motion for a mistrial

and motion for a new trial. Once alerted to the violation, the district court

immediately removed the alternate jurors from the deliberations; the alternate

jurors’ testimony reflected that their participation was not significant; and the




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district court properly instructed the jury to restart its deliberations and to ignore

any contributions made by the alternate jurors.

      AFFIRMED.




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