                  United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 13-2845
                          ___________________________

                               United States of America

                          lllllllllllllllllllll Plaintiff - Appellee

                                             v.

                             Manuel Maldonado Aguilar

                        lllllllllllllllllllll Defendant - Appellant
                                        ____________

                      Appeal from United States District Court
                  for the Eastern District of Arkansas - Little Rock
                                   ____________

                                Submitted: May 8, 2014
                                 Filed: May 29, 2014
                                   ____________

Before GRUENDER, BENTON, and KELLY, Circuit Judges.
                         ____________

BENTON, Circuit Judge.

       Manuel Maldonado Aguilar appealed his conviction, challenging, among other
things, the presence of an alternate juror during deliberations. This court remanded
“for the limited purpose of inquiry about the alternate’s actual participation.” In light
of the district court’s factual findings, this court reverses and remands.
        “[T]he alternate’s presence during deliberations violated Federal Rule of
Criminal Procedure 24(c)(3).” United States v. Aguilar, 743 F.3d 1144, 1148 (8th
Cir. 2014), citing United States v. Olano, 507 U.S. 725, 737 (1993) (“The presence
of alternate jurors during jury deliberations is no doubt a deviation from Rule
24(c).”). Because Maldonado did not object at trial, this court reviews for plain error.
Id., citing Fed. R. Crim. P. 52. “Maldonado bears the burden to show that the error
was prejudicial.” Id. at 1149, citing Olano, 507 U.S. at 737-38.

       In the earlier opinion, this court held that “a defendant is prejudiced when an
alternate ‘actually participate[s] in the deliberations’ or ‘exert[s] a ‘chilling’ effect on
the regular jurors.’” Id., quoting Olano, 507 U.S. at 739. This court remanded for
factual findings whether the alternate actually participated in deliberations or was
merely present. Id. at 1150-51.

       After 10 jurors and the alternate testified, the district court found:

       The alternate juror participated in the deliberations. Although it appears
       that her participation was minimal, it is clear that she asked questions.
       As the testimony outlined below indicates, different jurors remember her
       participation differently. The most reliable person on this question is the
       alternate juror herself, who testified that she asked questions but did not
       indicate her views on whether the defendant was guilty or not guilty.

       The alternate did not participate in any votes. Here, again, the most
       reliable testimony is that of the alternate, who testified that she did not
       vote. Although two jurors testified that they believe the alternate voted,
       neither of these jurors was certain. All other jurors testified that the
       alternate did not vote.

       The alternate did not indicate her views regarding the defendant. It
       appears that the jury was divided between eight to nine jurors who
       believed the defendant was guilty and three to four jurors who initially
       believed he was not guilty. The alternate testified that she asked

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      questions but never indicated her views regarding the defendant’s guilt.
      Although two jurors believe the alternate expressed her views because
      they remember everyone doing so, they do not remember what the
      alternate may have said. The other jurors either agree with the alternate’s
      testimony that she did not express her views, or they do not remember
      whether she did so.

      Finally, the alternate’s presence did not restrain the regular jurors from
      expressing their views or exercising independent thought. The jury was
      split at first, and each juror expressed her views before the votes were
      taken. The alternate did not participate in the discussions between these
      votes. Moreover, every juror testified that nothing the alternate said or
      did affected their points of view or the outcome of the case.

United States v. Maldonado, No. 4:11CR00190-03 BSM, 2014 WL 1744865, at *1
(E.D. Ark. May 1, 2014).

      Because the alternate actually participated in deliberations, the error was
prejudicial.

                                    *******

      The judgment is reversed, and the case remanded for proceedings consistent
with this opinion.
                     ______________________________




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