people that she's there brings her out the sense counsel immediately moves for a mistrial doesn't think this can be fixed at all she was back and she was with the jury in deliberations for about thirty minutes  see the twelve jurors they begin to deliberate for today someone has a an acute medical condition or passes away they call on the altar and the judge says ok you've got to start the deliberations all over again well a non the lotto really i don't really love that segment but i want the logic here because i think i'm not clearly says you can do that i know it does and i can't say that by experience of practicing law but it's always been logical well to help me if you can see some logic tells if you can't do what what we have in there is a place for somebody somebody is being replaced and it's clear that the person who was there was the juror was clearly the jerk at no time was there  jury room that's the difference in logically what difference does that make you had a person who got to express their opinions for today he's no longer on the jury and you tell the jury to start over with a new person id th and i think the only way you can really found that only thing you found it on is by saying that there was never anyone who is an alien to the jurors present danger i know that all of the sudden the juror who gets excused because she's sick as no longer in the jury watched the three four but when she was in the juror the jury deliberation room she was wearing the right cap and this case where somebody is wearing the wrong cap is in there we also have a problem  didn't for dear individually say let's see what you talked about he just said clean slate instruction start fresh right and then later on motion for a trial they talk about what happened in in the jury room but i don't think you can clean that up so you say it's a person error and so i think it's a it's a person there but but how just how is that consistent with the comments to twenty four c i never knew what the underlying error was and a lot of till this case but it's actually this issue suggests to me that when it gets amended at that point we're talking about an error that isn't per say well we have a we we have to see the big distinction between this case and all along and the biggest ascension is nobody i was the supreme court i know but the comments approvingly cite that first circuit decision that seems to reconcile with the statement that it's a per se  object to the incident to object a continuation of the trial and it should have stopped at the much the best record side if one exists to show that in fact discussions did occur that these alternate quote participated or discuss is or is there one yes presence that has a can rock that's your argument that that that it was all the record shows they were present ever you say silence but but the language of the rule was amended says no discussing it actually contemplates they could go sit there they just can't motion for a new trial and i think that the subject is there it's still an open question in the circuit can it can be cured our position is that no it cannot be cured that it can't pass the jurors how i don't talk about the card and i say i did the alien speaker not that doesn't seem to me to in the motion in that that doesn't seem to be meek is it six zero six that bars you're talking about deliberations right maybe if she's truly an alien can you can say i did that or did the pilot speak t prejudiced and the court to doubt abuse its discretion denying the motions for mistrial on trial because a clean slate instruction was given and under francis speak franklin it's presumed that the jury follows its instructions second the post verdict questioning of the twelve regular jurors is devoid of any evidence of actual participation or a chilling effect created by the alternate third the alternate was only present in the deliberation room for a mere thirty four minutes and on page eight stated one of the jurors didn't even wasn't even sure that the alternate ever spoke during that mere thirty four minutes it's also notable convictions have been affirmed in cases in which there was a much greater intrusion clean slate instruction which is almost three times as long as the alternate was present initially during the deliberations the acevedo case relies is an eleventh circuit case but the line on  were intimidated by a defense witness who was stalking the regular jurors and there was still found no prejudice in that case in this case a mere thirty four minutes of an alternate being present with zero facts on the record to support actual participation when you say three reasons going to ask you questions about the first in the second the first reason you said is well a clean slate instruction was given is that the government's position the clean slate instruction would always cure any presence so if for example it turns out the alternate gets voted to be the foreman and then the foreman dominates discussion saying guilty guilty guilty then it's discovered any time the district judges a lesson start fresh disregard anything before the government's position that's always enough you never even need for dear your honor that it is one of several important factors clearly it's an extremely important one given the presumption that the jury is going to follow the instructions i'd also point to pages eight seventeen to eight thirty nine of the record where these specific twelve regular members juror jury all confirmed that they followed the clean slate instruction and that's to me that's a very good question i had the same one either claims flight instruction is adequate or not if it's if it's not  it's not always adequate then you are in every case looking at he said what when archie yes your honor and so either is a clean slate instruction adequate or not it should be adequate to cure any error that occurred before the clean slate instruction was given which is the facts of this case that the post verdict questioning again provides additional support for the fact that there wasn't projects all twelve confirmed they followed the clean slate also confirmed that the final vote was the vote of only the twelve regular members of the juror jury but if you're asking us to rely on the presumption that jurors follow instructions judge jackson did tell them go in and discuss this case in a lot of the district court said don't discuss it to the alternate so why isn't the government stuck with the presumption that we have to assume they'll turn its did discuss it your honor there was the clean slate instruction after that thirty four minutes and again i i don't that's really what your position reduces to the clean slate is the cure it's always a cure it does cure it does cure the air however in this case we have much more than that because the poster to questioning of the jurors six of the jurors were asked a question along the lines was this a vote devoid of any participation of the alternate and i mean  page eight twenty six a juror was asked did you arrive at the verdict without considering any participation of the alternate eight twenty nine is this the verdict without any influence or input input from the alternate page eight thirty one is the verdict without any influence or participation the alternate multiple jurors rest that question the answer was the same this is the verdict avoid what what's the government's view of a best practice for a trial court literally the text would contemplate the judge the judge could say to alternate go and sit there quietly that the or should you always keep them in a separate area twenty four c three the alternates should be sequestered unless they need to replace a regular member of the jury doesn't read that way i thought it says retain but and if you do retain don't allow them to discuss it you know the united states would submit the best practice is to keep them outside of that deliberation room until they replace a regular juror in terms of a e you pressing on this record the this is a plain error case or are you not pressing that argument your honor we believe it is a plain air case there was that's hard to do right because he did move for a mistrial soon as he realized looked at under than over a view that the poster to question the jurors in the kerry i'm just surprised the government in this case unlike the one before is saying is this plain error because usually all parties don't really know where the alternates go they leave that up to the judge so really the first time a defense attorney would find out about it is when the bailiff or the marshal says well it's too many in there and then right away motion for a new trial to me it would seem like the government did preserve the issue but you're arguing on appeal that we should find this to be a plane or a case i think it regards them the mr kraft makes the argument that i think is is a reasonable one that the presence of the alternate though the alternate is silent that that silence could have communicated value we could suppose for example a situation in which someone throws up a question what does anyone think blah blah blah offices among the jurors and several of them speak up and you have the of there who doesn't speak up that would be communicating either a message or a negative message that could have influenced the others in this case judge smith the post verdict questioning is critical because there's no evidence of that chilling effect you're describing where the alternate influences the decision of the twelve regular members of the jury through potentially nonverbal communication and you can point to the the record from pages eight seventeen to eight thirty nine where the jurors are asked approx and six jurors are asked a question along the lines of is this the verdict devoid of any influence or participation of the alternate all responded it was devoid of that influence o participation but that you're just i mean your framework of analysis sounds strong to me but do you do realize when you tell us a clean slate and selections enough but then in the next breath you say questioning was critical that's not describing a very easy rule for us to write if we're trying to write for district judges to know when this mistake happens do we encourage them to question about the participation or what happens or do we say the best practice is just a clean slate instruction what's the government's advice in terms of best practice once the errors already occurred your honor the united states respectfully submit the clean slate absolutely has to be should be given and that is enough to cure the err on the other hand as a backup plan follow the questions in the allison decision of this court where there is post for to question and follow that example as an ideal practice so that when we are in the position we are in today there's that extra layer of protection  if there are no further questions we were allowing our briefing and submit that the court should have confidence in this verdict there was significantly less of an intrusion on the regular members of the jurors than there has been in other cases in which there was a lack of prejudice found and a sort of an operating room type of type of civility and that's to really is violated when the when the alternate is in there and that we can't question beyond that the judge gave the the the clear that he gave the clean and so i think that i don't think it can be cured i think that that clear i think what we see from the other negative examples is there are possibilities where you could waive it i certainly don't think anything is way when you don't object when the alternate goes back in because quite frankly no one really knows what goes on that's up to the bailiff of the court security people who blew them around all kinds of things that i would depend on th wasn't discovered nobody knew it did lawyers didn't know to the bailiff reported the judge or something that's not that's not i didn't read the governor's races indication that defense counsel needed to alter there's no says there's no reason why you pay attention to