                                                                                  [PUBLISH]


                      IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT


                                          No. 95-4729


                              D.C. Docket No. 94-CR-550-KMM


       UNITED STATES OF AMERICA,

                                                                   Plaintiff-Appellee,


                                     versus


       SANTOS ACEVEDO,


                                                                   Defendant-Appellant.




                          Appeal from the United States District Court
                             for the Southern District of Florida


                                        (May 22, 1998)


Before TJOFLAT and EDMONDSON, Circuit Judges, and O'NEILL*, Senior District Judge.

_____________________________________________

*Honorable Thomas N. O'Neill, Jr., Senior U.S. District Judge for the Eastern District of
Pennsylvania, sitting by designation.
TJOFLAT, Circuit Judge:

        Rule 24(c) of the Federal Rules of Criminal Procedure requires district judges to

discharge any alternate juror who has not replaced a regular juror “after the jury retires to

consider its verdict.” In the case at hand, the district court forgot to dismiss the alternate jurors

when the jury retired; as a consequence, the alternates participated in deliberations. When the

court discovered its mistake, it dismissed the alternates and instructed the jury to begin

deliberations anew – the jury thereafter found the defendant guilty as charged. The defendant

now appeals, contending that either 1) the court’s violation of Rule 24(c), with nothing more, or

2) the alternates’ participation in deliberations required the district court to declare a mistrial.

We disagree and therefore affirm.



                                                   I.

         On March 15, 1995, Santos Acevedo was brought to trial in the Southern District of

 Florida on two federal weapons charges: possession of a firearm as a convicted felon, and

 possession of ammunition as a convicted felon. See 18 U.S.C. § 922(g)(1) (1994). A jury of

 twelve and two alternates was empaneled; the trial consumed less than one day. Following

 closing argument, the court charged the jury and the jurors retired to deliberate.

         The court, however, did not dismiss the alternates; they accompanied the twelve regular

 jurors to the deliberation room without objection. The fourteen jurors took less than one hour to

 conclude that the defendant was guilty on both counts of the indictment, to have the foreman fill

 out and sign the verdict form, and to inform the court that a unanimous verdict had been




                                                    2
reached.1 At this point, the court realized that the two alternates had participated in the jury’s

deliberations, and immediately notified the parties. After speaking to counsel, the court

proposed that it dismiss the alternates and instruct the twelve regular jurors to begin their

deliberations again. Acevedo objected, but offered no alternative solution. When the court

indicated that it would implement its proposal, Acevedo moved for a mistrial. The court denied

the motion and proceeded to bring the jury back into the courtroom.

           After explaining the problem to all fourteen jurors – that the alternates should not have

been present during jury deliberations – the court placed under seal the verdict form that had

been executed. It instructed the twelve regular jurors "to commence deliberations as if anew,

taking into consideration all of the instructions I previously gave you . . . ," and released them to

re-deliberate. The court then “polled” the two alternates (the poll indicated that the sealed

verdict represented their verdict) and, upon Acevedo’s request, confirmed that the alternate who

handed the court the verdict form had acted as foreman during the jury’s initial deliberations.

Having made these findings a part of the record, the court discharged the alternates.

           The jury, now composed of only the twelve regular jurors, took approximately five

minutes to return a verdict of guilty on both counts of the indictment. Following sentencing,

Acevedo lodged this appeal.




       1
           The jurors did not at this point indicate to the court whether they had found Acevedo
defendant guilty or not guilty of the two charges in the indictment; as explained infra, the district
court placed the fourteen jurors’ verdict form under seal without examining its contents. Later,
after the court adjudged Acevedo guilty pursuant to the verdict of the twelve regular jurors, the
court unsealed the fourteen jurors’ verdict; the court and the parties then learned for the first time
that the fourteen jurors had also found Acevedo guilty as charged.

                                                    3
           Acevedo claims that he was entitled to a mistrial. His initial contention is that the

district court’s failure to discharge the two alternates in adherence to the letter of Rule 24(c)

constituted reversible error as a matter of law.2 Assuming that such failure did not, standing

alone, require a mistrial, Acevedo contends that the court should have aborted the proceedings

upon his motion because the prejudice he suffered from the alternates’ presence in the

deliberation room was incurable.3

           We first review Acevedo’s contention that the district court committed per se reversible

error under a de novo standard, as it presents a question of pure law. We then review the trial

court’s decision to deny Acevedo’s motion for mistrial for abuse of discretion. See, e.g., United

States v. Puentes, 50 F.3d 1567, 1577 (11th Cir. 1995); United States v. Prince, 883 F.2d 953,

962 (11th Cir. 1989). Finally, although Acevedo did not object to the court’s curative

instruction at trial, we review the instruction for plain error. See Fed.R.Crim.Pro. 52(b) (“Plain

errors or defects affecting substantial rights may be noticed although they were not brought to




       2
          Acevedo’s brief on appeal does not state explicitly that the district court’s failure to
discharge the alternates as required by Rule 24(c) was error per se; rather, we infer from
Acevedo’s argument that he considers such failure to require an automatic reversal. Acevedo,
however, did not object to the court’s failure to discharge the two alternates when the jury retired
to deliberate; thus, the question arises whether he waived the court’s violation of Rule 24(c).
Because Acevedo, like the court and the prosecutor, did not know that the alternates had retired
to deliberate with the twelve regular jurors, we consider Acevedo as having preserved his
objection to the Rule 24(c) violation by moving the court for a mistrial once the court made
known the alternates’ presence in the jury room.
       3
          Acevedo also challenges the sufficiency of the evidence to convict. This challenge is
frivolous. The Government’s proof was overwhelming: the defendant was a convicted felon, and
he admitted to two law enforcement officers that the pistol and ammunition that formed the basis
of his indictment were his.

                                                    4
the attention of the court.”). We conclude after review that Acevedo’s contentions hold no

merit; we therefore affirm his convictions.



                                                    II.

                                                    A.

           Acevedo’s first argument – for an automatic mistrial – is easily disposed of; in United

States v. Allison, 481 F.2d 468 (5th Cir. 1973),4 we explicitly rejected a rule of per se reversal

for Rule 24(c) violations. See id. at 471 (“We . . . are of the view that such an automatic rule is

an improper standard to apply to the situation here at issue . . . .”); see also United States v.

Phillips, 664 F.2d 971, 994 (5th Cir. Unit B 1981)5 (“This Court . . . does not apply a per se rule

of reversal to Rule 24(c) violations.”). In doing so, we declined to follow the Fourth and Tenth

Circuits in United States v. Virginia Erection Corp., 335 F.2d 868 (4th Cir. 1964), and United

States v. Beasley, 464 F.2d 468 (10th Cir. 1972). Instead, we held that a Rule 24(c) violation

does not necessitate a new trial unless there is a “reasonable possibility” that the violation

prejudiced the defendant at trial. See 481 F.2d at 472.

           In this case, we agree that the district court’s oversight of Rule 24(c) posed a threat of

prejudice to Acevedo because the court’s failure to dismiss the alternates allowed them to enter

the deliberation room. The Supreme Court has held that the mere presence of an alternate in the


       4
         In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.
       5
         In Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982), this court adopted
as binding precedent all decisions of Unit B of the former Fifth Circuit handed down after
September 30, 1981.

                                                     5
jury room during deliberations is not inherently prejudicial to the defendant. See United States

v. Olano, 507 U.S. 725, 739-41, 113 S.Ct. 1770, 1780-81, 123 L.Ed.2d 508 (1993). The Court,

however, implied that once the alternate participates in any way – whether through words or

gestures – prejudice is manifest. See id. at 739, 113 S.Ct. at 1780 (prejudice may arise “either

because the alternates actually participated in the deliberations, verbally or through ‘body

language’; or because the alternates’ presence exerted a ‘chilling’ effect on the regular jurors”)

(citations omitted); United States v. Allison, 481 F.2d 468, 472 (5th Cir. 1973) (remanding to

determine whether an alternate instructed merely to observe deliberations “participated in any

way in the deliberations” and thereby caused the defendant prejudice). In Acevedo’s case, it is

obvious that the two alternates were full-fledged participants instead of silent observers; not

only did the court instruct the alternates to deliberate with the regular jurors, the regular jurors

treated the alternates as members of the jury, electing an alternate as their foreman. Thus, under

Olano, we assume that the alternates were a prejudicial influence on the jury’s deliberations.

           A mistrial, however, is only warranted if there is a reasonable possibility that the district

court’s violation of Rule 24(c) actually prejudiced Acevedo by affecting the jury’s final

verdict.6 See United States v. Allison, 487 F.2d 339 (5th Cir. 1973) (affirming the defendant’s


       6
           The final verdict in this case is the verdict rendered by the twelve regular jurors after
the district court’s clean slate instruction. As noted supra, the jury composed of twelve regular
jurors and two alternates informed the district court that they had reached a decision as to
Acevedo’s guilt. That decision, however, was not the final verdict pursuant to which Acevedo
was adjudged guilty. See United States v. Taylor, 507 F.2d 166, 168 (5th Cir. 1975) (establishing
that a verdict is valid only if it is published in open court with no juror dissent). We therefore
evaluate the alternates’ effect only on the twelve-juror verdict. We reserve for another day the
question of whether fourteen jurors can render a valid verdict. Compare United States v.
Williams, 399 U.S. 78, 102 S.Ct. 1893, 26 L.Ed.2d 446 (1969) (stating that “the fact that the jury
at common law was composed of precisely 12 is a historical accident, unnecessary to effect the
purposes of the jury system and wholly without significance except to mystics” (internal

                                                     6
conviction because the district court determined on remand that there was “no reasonable

possibility” that an alternate present during deliberations had affected the jury’s final verdict).

In other words, unless there is a reasonable possibility that the alternates’ initial participation

caused the twelve regular jurors who rendered the final verdict to convict instead of acquit, the

Rule 24(c) violation is harmless error and Acevedo’s convictions will stand.

                                                  B.

        This brings us to Acevedo’s second contention. He claims that we need not evaluate

whether the district court cured the prejudice caused by the alternates’ initial participation (by

issuing its “clean slate” instruction) because that prejudice was incurable. Thus, Acevedo

reasons, the district court abused its discretion when it denied his motion for mistrial based on

the alternates’ participation. Cf. United States v. Dodd, 111 F.3d 867, 870 (11th Cir. 1997)

(stating that if the trial court has issued a curative instruction, we will reverse a denial of a

motion for mistrial based on evidentiary error only when “the evidence is so highly prejudicial

as to be incurable by the trial court’s admonition”). In United States v. Phillips, 664 F.2d 971

(5th Cir. Unit B 1981), aff’g United States v. Meinster, 484 F.Supp. 442 (S.D.Fla. 1980),

however, we held that the prejudice, if any, caused by the initial participation in deliberations of

a regular juror who was excused for cause before the jury delivered its final verdict was curable.

See also United States v. Kopituk, 690 F.2d 1289 (11th Cir. 1982) (adopting Phillips

wholecloth). We believe that Phillips controls our decision here.




quotations and citation omitted)), with United States v. Ottersburg, 76 F.3d 137, 140 (7th Cir.
1996) (reversing a district court’s judgment of guilty under a plain error analysis because “[t]he
criminal conviction before us is based on the verdict of a jury composed of more than the [12
jurors] permitted by Rule 24(c)”).

                                                   7
           In Phillips, as in Acevedo’s case, the district court violated the letter of Rule 24(c) by

failing to discharge an alternate juror when the jury retired to deliberate. The court in Phillips,

however, did not simply neglect to dismiss the alternate, but purposefully held that alternate “in

reserve” against the possibility that the court would have to excuse a juror for cause during

deliberations. See Phillips, 664 F.2d at 990.7 When a regular juror suffered a heart attack



       7
            When Phillips was decided, Rule 23(b) of the Federal Rules of Criminal Procedure did
not authorize a verdict by a jury of fewer than twelve, absent stipulation by the parties. See
United States v. Taylor, 507 F.2d 166, 168 (5th Cir. 1975). Thus, if a juror was excused during
deliberations, a district court was forced to declare a mistrial because fewer than twelve jurors
could not return a valid verdict. See id. at 169. In Phillips, defense counsel had refused to
stipulate to a verdict of fewer than twelve, and the possibility that a juror would be excused for
cause during deliberations was not remote. See United States v. Meinster, 484 F.Supp. 442, 443
(S.D.Fla. 1980) (noting that three jurors had already been excused for cause during the four-
month long trial). The district court in Phillips, therefore, was faced with a Hobson’s choice:
risk warranting a mistrial by purposefully violating Rule 24(c) and keeping an alternate “in
reserve” during trial, or risk being forced to grant a mistrial if a juror was excused before the jury
returned its verdict. The Phillips court’s holding on appeal – that a violation of Rule 24(c) is
curable – eliminated this Hobson’s choice by allowing a district court to hold an alternate in
reserve without fear of automatic mistrial.
         In 1983, however, Rule 23(b) was amended to read: “if the court finds it necessary to
excuse a juror for just cause after the jury has retired to consider its verdict, in the discretion of
the court a valid verdict may be returned by the remaining 11 jurors.” This amendment
eliminated the need for a district court to violate Rule 24(c) if it wished to avoid a mistrial – the
practice authorized by Phillips. Thus, at least one circuit has declared Phillips a dead letter. See
United States v. Huntress, 956 F.2d 1309, 1315 (5th Cir. 1992) (“We read the [amended] Rule
23(b), in conjunction with . . . Rule 24(c), as requiring that district judges allow an 11-member
jury to proceed to verdict or grant a mistrial. . . . The intent of the 1983 amendment to Rule
23(b) . . . was to obviate the need for the Phillips procedure.”). In this circuit, however, we
continue to recognize that Phillips allows a district court to violate Rule 24(c) by substituting an
alternate after deliberations have begun, as long as the court cures any prejudice resulting from
the substitution. See United States v. Guevara, 823 F.2d 446, 448 (11th Cir. 1987); cf. United
States v. Geffrard, 87 F.3d 448, 452 (11th Cir.), cert. denied, -- U.S. --, 117 S.Ct. 442, 136
L.Ed.2d 339 and sub nom Landry v. United States, -- U.S. --, 117 S.Ct. 443, -- L.Ed.2d -- (1996)
(stating in a multi-defendant case in which the jury had already reached a verdict regarding two
defendants that substitution of an alternate for a juror dismissed for cause was a permissible but
not “favored” option for the district court). Thus, Phillips retains its precedential value for this
case.

                                                     8
during deliberations, the court excused that juror and recalled the alternate. Id. Before adding

the alternate to the jury, the court questioned the alternate concerning her exposure to outside

influences after the case was submitted to the jury (a precaution obviously not necessary in this

case). Id. The court then substituted the “reserve” alternate for the excused juror and instructed

the jury (now composed of the eleven remaining regular jurors and the alternate) to begin

deliberations again. Id. The jury eventually delivered a verdict of guilty. On appeal, the

convicted defendant argued that the court’s failure to dismiss the alternate in violation of Rule

24(c) was reversible error. Id. at 991-92. The court of appeals disagreed, holding that the

district court had cured any prejudice caused by the late substitution. Id. at 996.

           Although the Rule 24(c) violation in Phillips resulted in a fact pattern different from that

in Acevedo’s case, Phillips is identical to Acevedo’s case in the only respect relevant to this

appeal. In both cases, the threat of prejudice to the defendant arose at least in part because the

excused juror (or in Acevedo’s case, the two dismissed alternates) had an opportunity to

influence the jury before he was excused. Thus, the excused juror may have convinced the jury

to convict when it otherwise would have acquitted. Put a different way, in both Phillips and

Acevedo’s case there is a possibility that the final verdict did not reflect the independent

judgment of the jurors rendering the verdict, but instead reflected an amalgamation of the

judgments of every juror who participated at some point during the jury’s deliberations.8


       8
          Because the Phillips jury not only lost one of its original members, but also was forced
to absorb a new member (the substituted alternate), the threat of prejudice to the defendant in
Phillips also manifested in ways that are not relevant in Acevedo’s case. The Phillips court was
concerned that the remaining eleven regular jurors, having invested substantial time and effort in
the deliberations, would coerce the alternate into voting for a particular verdict. See Phillips,
664 F.2d at 995-96. In Acevedo’s case, this concern is obviously not present – there is no added
juror to be coerced. The Phillips court was also concerned that the substituted alternate may

                                                    9
           In Phillips, however, we held that the district court’s curative procedures were sufficient

to eliminate the threat of prejudice to the defendant resulting from the court’s violation of Rule

24(c); thus, the violation was not incurable as a matter of law. We see no reason to hold

differently here; the district court was within its discretion to deny Acevedo’s motion for

mistrial and to attempt to cure the prejudice caused by the alternates’ participation by lesser

means. Acevedo’s argument – that he was entitled to a mistrial once the alternates participated

in deliberations – fails.

                                                   C.

           The only remaining question, therefore, is whether the district court’s clean-slate

instruction eliminated the threat of prejudice to Acevedo posed by the alternates’ initial

participation; if so, the Rule 24(c) violation was harmless error.9 Because Acevedo did not



have been exposed to outside influences while he was separated from the jury, and that the
alternate would inject biases formed from exposure to those influences into the jury’s
deliberations. See id. at 990 (noting with approval that the district court had questioned the
alternate concerning his exposure to outside influences). This threat also is not present in this
case; Acevedo’s alternates were never separated from the regular jurors and therefore had no
opportunity to encounter outside influences. The defendant in Phillips, therefore, arguably
suffered much more prejudice than did Acevedo – prejudice that was still, as explained infra,
curable.
       9
          We note that it is impossible, after a final verdict has been rendered, to ascertain the
actual extent of the alternates’ prejudicial influence. To determine the degree to which the
alternates swayed the regular jurors during deliberations, we would need to delve into the
substance of the jury’s deliberations both while the alternates were present and after they were
dismissed. Rule 606(b) of the Federal Rules of Evidence, however, prevents us from doing so.
        Rule 606(b) states:

       Upon an inquiry into the validity of a verdict . . . a juror may not testify as to any
       matter or statement occurring during the course of the jury’s deliberations or to
       the effect of anything upon that or any other juror’s mind or emotions as
       influencing the juror to assent to or dissent from the verdict . . . or concerning the
       juror’s mental processes in connection therewith, except that a juror may testify

                                                   10
challenge the language of the instruction at trial, we review it only for plain error. We find no

error here; the instruction was sufficient to direct the twelve regular jurors to re-deliberate

without regard to their initial decision.

        We assume that jurors follow their instructions. See Francis v. Franklin, 471 U.S. 307,

324 n.9, 105 S.Ct. 1965, 1976 n.9, 85 L.Ed.2d 344 (1984). Thus, because Acevedo presents no

evidence to the contrary, we may assume that the twelve regular jurors began their deliberations

anew as instructed, without influence from the now-absent alternates. The regular jurors were

therefore able to deliver their final verdict free of prejudicial taint.



                                                  III.




       on the question whether extraneous prejudicial information was improperly
       brought to the jury’s attention or whether any outside influence was improperly
       brought to bear upon any juror.

The exception for an inquiry into “extraneous prejudicial information” or “outside influence”
does not apply in this case because the alternate jurors brought no extraneous information into
the jury room. Thus, Rule 606(b) prevents any inquiry of the twelve regular jurors regarding
“any matter or statement” made by a juror as well as the jurors’ “mental processes.” With these
constraints, it is impossible for any court to determine the extent of the alternates’ influence on
the regular jurors once a final verdict has been rendered.
        In United States v. Watson, 669 F.2d 1374 (11th Cir. 1982), we were confronted with a
fact pattern similar to the one in this case. In Watson, we suggested in dicta that we could
remand the case to the district court for an evidentiary hearing to determine whether there was a
reasonable possibility that an alternate present during deliberations in violation of Rule 24(c) had
“in any manner affected the verdict.” Id. at 1392. In light of Rule 606(b), however, we interpret
Watson as suggesting a hearing only for the limited purpose of determining whether an alternate
participated in deliberations or remained a silent observer – an inquiry that the district court may
be able to conduct within the confines of Rule 606(b). See Allison, 481 F.2d at 472 (remanding
for such an inquiry). In Acevedo’s case, it is clear that the alternates did in fact participate; thus,
there is no need for an evidentiary hearing here.

                                                   11
        In light of the district court’s clean slate instruction, we hold that there is 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) is therefore harmless error. The

district court’s judgment is



AFFIRMED.




                                                  12
