United States Court of Appeals

For the Eighth Circuit

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No. 13-2845

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Manuel Maldonado Aguilar

lllllllllllllllllllll Defendant - Appellant

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 Appeal from United States District Court 

for the Eastern District of Arkansas - Little Rock

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 Submitted: May 8, 2014

 Filed: May 29, 2014

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Before GRUENDER, BENTON, and KELLY, Circuit Judges.

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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 belowindicates, different jurorsremember her

participation differently. The most reliable person on this question isthe

alternate juror herself, who testified thatshe 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 jurorstestified 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 viewsregarding 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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