### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT 07/29/99 THOMAS K. KAHN CLERK PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

____________________________ No. 96-2599

____________________________ D.C. Docket No. 93-305-CR-T-17A

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus JUBAL CHARLES REGISTER, RONALD OWEN BILBREY, JR., and HERBERT CHARLES REGISTER, Defendants-Appellants.

________________________________________ Appeals from the United States District Court for the Middle District of Florida

_______________________________________ (July 29, 1999) Before MARCUS, Circuit Judge, and KRAVITCH, Senior Circuit Judge.*

__________________ *This decision is rendered by a quorum, due to the retirement of then-Chief Judge Hatchett on May 14, 1999. See 28 U.S.C. § 46(d). KRAVITCH, Senior Circuit Judge:1 The jury found the defendants not guilty on several other counts charged in the superseding indictment. 2 A jury convicted defendants-appellant s Herbert Charles Register (“Charles Register”), Jubal Charles Register (“Jubal Register”), and Ronald Owen Bilbrey, Jr. (“Bilbrey”) in November 1995 of various fe deral crimes related to drug trafficking, including one count of conspiring to di stribute and to possess for the purpose of distributing methamphetamine in violati on of 21 U.S.C. § 846 and multiple counts of possession with intent to distribute and distribution of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The jury also c onvicted Bilbrey and Charles Register of other drug offenses; Ch arles Register of two counts of being a felon in possession of a firearm in viola tion of 18 U.S.C. § 922(g); and Jubal Register of carrying a firearm in relation to a drug tr afficking offense in violation of 18 U.S.C. § 924(c). 1 Finally, the jury required the defe ndants to forfeit two businesses and two parcels of real estate pursu ant to 21 U.S.C. § 853(a). The district court set aside the jury’s verdict against Jubal Register for usi ng a firearm in relation to drug trafficking, sentenced all three defendant s on their convictions, and en tered an order requiring the defendants to forfeit the property in question. Each defendant appeals several aspects of his trial, conviction, and/or sentence. The defendants present a total of seven issues for our cons ideration: (1) whether the3 amount of time that passed between the initial indictment and the trial violated Jubal Register’s statutory or constitutional right to a speedy trial; (2) whether the district court violated Charles Register’s constituti onal right to be repr esented by counsel of his choice by disqualifying his retained attorn ey prior to trial; (3) whether the district court erred in refusing to grant Charles Regis ter an adversarial, pre-trial hearing with respect to the government’s filing of noti ces of lis pendens regarding his property, effectively preventing him from using that property to retain a new attorney; (4) whether the district court erred when it re tained one juror accused of bias and when it dismissed and replaced another juror fo r improper conduct; (5) whether sufficient evidence existed to support Jubal Register’s c onvictions; (6) whether the district court erred in enhancing Charles Register’s and Jubal Register’s sentences for possession of a firearm during the commission of a drug offense; and (7) whether the district court violated the Ex Post Facto clause by applying the most recent version of the Sentencing Guidelines. With respect to the last three issues, we have examined the record and found those challenges to be without merit; we therefore affirm the district court’s decisions on those three points without discussion. We also affirm the district court with respect to the first four issues, for the reasons discussed in Part II of this opinion. I. Background2 See United States v. Garcia , 517 F.2d 272 (5th Cir. 1975).

3 The 1993 indictment (and the superseding indictment) originally charged five defendants. On the day the trial began, one of them pleaded guilty, and the government dismissed the indictment as to another. 4 A grand jury originally returned an indictment encompassing some of the charges in this case in 1992 (“the initial i ndictment” or “the 1992 indictment”). As a result, Charles Register and Jubal Register both were arrested. At their arraignment in October 1992, the government brought to the court’s attention a possible conflict of interest: Charles Register’s attorney previously had represented several potential witnesses and currently was representing Jubal Register on matte rs related to the charges in the indictment. The court held a Garcia 2 hearing, explaining to Charles Register how his attorney’s other representations could impair his ability to represent Charles Register effectively. Charles Regist er waived any conflict of interest, electing to proceed with his attorney, and the court accepted this waiver. The court detained Charles Register; Jubal Register initially obtained bond but violated conditions of his bond release in May 1993, which resulted in his detention. Both Charles Register and Jubal Register remained in prison until their trial in November 1995. In November 1993, a grand jury returned another indictment (“the 1993 indictment”) that incl uded additional defendants 3 and charges; shortly thereafter, the government dismissed the initial indictment. The 1993 indictment charged, among4 Although Charles Register apparently did not have legal title to either piece of property and the exact nature of his interest is unclear, all parties agree that he had some ownership interest in each of them. 5 other things, that the defendants had formedan “enterprise” to provide an organized framework for distributing controlled substances in violation of the federal Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968. It alleged that one manner in which the enterprise operated was that unnamed “attorneys” representing members of the en terprise would learn of the forthcoming execution of search warrants, warn enterp rise members of the warrants, and conceal contraband for the members to avoid detec tion, and would share other information they obtained from their clients with other members of the enterprise. The 1993 indictment also set out the charges on which the jury ultimately convicted the defendants and included forfe iture allegations with re spect to personal property, businesses, and real estate parcels. Imme diately after the grand jury returned this indictment, the government filed lis pendens notices with respect to three pieces of real estate on which it was seeking forfeiture. Charles Register had an ownership interest in two of these pieces of property. 4 In January 1994, the government again move d for the district court to disqualify Charles Register’s retained attorney becau se of an actual or potential conflict of interest. This time the government argued that (1) in the past the attorney had5 The court determined that a new Garciahearing was necessary because the government’s new allegations—that the attorney could have a conflict based upon his possible involvement in the defendants’ criminal activity and the grand jury’s investigation of his actions—were not before the court at the first Garcia hearing. 6 represented some of Charles Register’s c odefendants in state court on substantially related matters; (2) the attorn ey currently was representing Jubal Register in a related state court matter; and (3) the attorney was a subject, though not a target, of the ongoing grand jury investigation into the cr iminal activity covered by the indictment, and the government possessed information imp licating him in the defendants’ alleged criminal conduct. The court ordere d a full-scale, adversarial Garcia hearing to resolve the conflict of interest issue. 5
The court held the second Garciahearing over three days in December 1994. The government called five w itnesses who testified about four possible incidents of misconduct by the attorney. Counsel repres enting Charles Register’s attorney crossexamined the government’s witnesses and ca lled two government agents to the stand. At the conclusion of the testimony, the government and the attorney’s counsel presented arguments regarding whether the evidence presented atthe hearing would be admissible at trial, whether the eviden ce could be redacted in a way to avoid implicating Charles Register’s attorney, and whether th e evidence demonstrated an actual or potential conflict of interest su ch that the court should disqualify the attorney. In January 1995, the district court issued its ruling that an actual conflict of7 interest existed because the attorney might be more strongly motivated to protect his own interests than those of his client, Charles Register. Although the court did not issue any conclusive findings with respect to the truthfulness of the allegations against the attorney, it found a reasonable possibility that the allegations were true based upon the credible testimony of the government’s w itnesses. On this basis, it refused to accept Charles Register’s waiver of the c onflict of interest and disqualified his attorney. In March 1995, the grand juryhanded down its third indi ctment related to these defendants (“the superseding indictment”) , which replaced the 1993 indictment. The superseding indictment was substantially similar to the 1993 indictment except that it eliminated all RICO charges, including a ll references to any participation by the defendants’ unnamed “attorneys” in their criminal activities. Meanwhile, Charles Register had beg un trying to find a new attorney. Although he located an attorney whom he wanted to hire, Richard Hersch, Charles Register’s only assets were the two properties with respect to which the government had filed notices of lis pendens in antic ipation of requiring their forfeiture. He contended that because the lis pendens no tices effectively prevented him from using those assets to retain counsel, the governme nt violated his rights to due process and to be represented by an attorney of his choice by filing the notices without providing6 During the same time period, Jubal Register also was expressing displeasure with his appointed attorney and demanding that the court allow him to proceed pro se. In August 1995, however, Jubal Register and his appointed attorney apparently resolved their differences, and Jubal Register rescinded his motion for the court to require his attorney to withdraw. 8 him with an adversarial, pre-trial heari ng. Hersch entered a limited appearance on behalf of Charles Register on this issu e only, demanding a pre-trial hearing with respect to the government’s restraint of th e property. In the meantime, however, the court found Charles Register to be indigent and appointed an attorney to represent him. Charles Register quickly became unhappy with his appointed attorney and petitioned the court at various times to a ppoint a new attorney or to allow him to represent himself. A magistrate judge he ld a hearing to address Charles Register’s representation in July 1995. After the magi strate judge determined that it needed to appoint a new attorney, it replaced Charle s Register’s appointed counsel in August 1995 with attorney Frank Louderback. 6
The court referred the motion for a hear ing on the lis pendens notices to a magistrate judge who began trying to resolv e the issue but ultimately determined that he should recuse himself. The second magistrate judge to address the issue recommended in September 1995 that Charles Register was not entitled to any hearing regarding the reasonableness of the lis pendens notices. The magistrate judge reasoned that such a hearing was not required to satisfy either Charles Register’s Sixth Amendment right to counsel (because the court had appointed an attorney to represent9 him) or the Fifth Amendment due process clause (because the lis pendens filings did not themselves amount to a deprivation of property—they merely notified the public that the government was pursuing forfeiture of the property). The district court adopted this ruling, and Charles Register proceeded to trial represented by appointed attorney Louderback. The trial took place in November 1995 and lasted ten days. On the morning of the first full day of jury de liberations, the government raised a concern about Juror Number 6. After conducting a limited inves tigation, the judge dismissed the juror over the defendants’ obj ections, replacing her with the first alternate. The newly impaneled jury deliberated for nearly two da ys before returning the verdict described above. The court subsequentlyconducted the forfeiture phase of the trial, and the jury reached a verdict in favor of the governmentwith respect to all of the property on which the government sought forfeiture. At sentencing, the court adopted the factual findings and Sentencing Guidelines app lications recommended in the presentence investigation reports for all three defendants except that as to defendants Charles Register and Jubal Register, the court d eclined to apply anenhancement for obstruction of justice. The court senten ced Bilbrey to 360 months of imprisonment and 60 months of supervised release, and Charles Register and Jubal Register each to10 222 months of imprisonment and 60 months of supervised release. This appeal followed. II. Discussion A. Speedy Trial Jubal Register contends that the 38-m onth delay between his arrest under the initial indictment and his trial violated his rights to a speedy trial provided by the Sixth Amendment and the Speedy Trial Ac t, 18 U.S.C. §§ 3161-3174. We examine the question whether the district court vi olated Jubal Register’s legal rights de novo

. See Whitley v. United States , 170 F.3d 1061, 1068 n.14 (11th Cir. 1999). The Supreme Court has identified four factors that courts should consider in determining whether a defendant has been deprived of his constitutional right to a speedy trial: (1) the length of the delay; (2) the reasons for the delay; (3) the defendant’s assertion of th e right; and (4) the prejudice to the defendant. See Barker v. Wingo , 407 U.S. 514, 530-32, 92 S. Ct. 2182, 2192-93 (1972). The first factor serves a triggering function; unless some “presumptively prejudicial” period of delay occurred, we need not conduct the remainder of the analysis. See id. at 530, 92 S. Ct. at 2192. The government concedes, however, that the 38-month delay in this case was presumptively prejudicial. See Doggett v. United States , 505 U.S. 647, 652 n.1, 112 S. Ct. 2686, 2691 n.1 (1992) (“[T]he lower courts have generally found postaccusation11 delay ‘presumptively prejudicial’ at least as it approaches one year.”); see also United States v. Schlei , 122 F.3d 944, 987 (11th Cir. 1997) (recognizing that the Eleventh Circuit is in accord with Doggett ’s observation), cert. denied , — U.S. —, 118 S. Ct. 1523 (1998). Despite this significant passage of time, we conclude upon examination of the other three factors that the delay did not violate Jubal Register’s constitutional rights. Beginning with the fourth factor, we not e that Jubal Registe r has failed to put forth a single argument that the delay in his trial resulted in any actual prejudice to him. In fact, he apparently concedes that he suffered no prejudice and furthermore recognizes that “[i]n this circuit, a defe ndant generally must show actual prejudice unless the first three factors . . . all wei gh heavily against the government.” United States v. Davenport , 935 F.2d 1223, 1239 (11th Cir. 1991). Jubal Register nonetheless contends that this court shoul d find a violation of his Sixth Amendment right by holding that the length of the delay, the reason for the delay, and his assertion of his right all weigh strongly in his favor. Although we agree that 38 months is an extraordinary period of time to force a defendant to wait for a tr ial and that, under many circ umstances, a delay of that length would amount to a constitutional violation, in this case, the second and third factors do not support a holding in Jubal Reg ister’s favor. After studying the record,7 The district court also faced extensive pre-trial litigation between a local newspaper that attempted to intervene in the case to gain access to the records pertaining to the attorney’s disqualification, which had been sealed, and Charles Register and his retained attorney, who vehemently opposed the release of those records. A codefendant’s interlocutory appeal also may have affected the trial date. 12 we cannot attribute the delay entirely to th e government. Instead, our analysis leads us to conclude that Jubal Register, his c odefendants, and the government all bear some responsibility for putting off the trial; the complex nature of the charges and sheer number of defendants and issues involved also account for some of the delay. As explained in Part I, supra , the district court spent a significant amount of time addressing the government’s motion to dis qualify Charles Register’s attorney and Charles Register’s motion for a pre-trial hear ing on the lis pendens notices. The court also dealt with issues that Jubal Register presented to it, including requests to allow him to proceed pro se and multiple motions to reconsider its decision to detain him after he violated the conditions of his orig inal bond release. Jubal Register’s attorney also moved for continuances on more than one occasion; the record reflects that he filed the last such motion, which the court denied, only five days before the trial commenced. 7 Finally, the record belies Jubal Registe r’s contention that he aggressively sought to exercise his right to a speedy trial. He claims that he attempted to enforce his right on four occasions between Apr il 1994 and September 1995, but in fact he13 demanded a speedy trial in only two of thos e motions; the other two requested that he be released due to excessive pre-trial detention. Furthe rmore, the record shows that on at least four occasions between May 1994 and October 1995 (i ncluding the abovenoted instance five days before the tria l actually began), Jubal Register, through counsel, moved for a continuance. In lightof these facts, we cannot say that the second and third factors “weigh heavily against the government,” Davenport , 935 F.2d at 1239, and we therefore find no violation of Jubal Register’s Sixth Amendment right to a speedy trial. We also reject Jubal Register’s argumen t that he is entitle d to relief under the Speedy Trial Act, which gene rally requires the trial of a criminal defendant to commence within 70 days of the later of the date the indictment was filed or the date the defendant made his first app earance before the court. See 18 U.S.C. § 3161(c)(1). The sanction that the statute provides in case of its violation is dismissal of the indictment, either with or without prejudice. See 18 U.S.C. § 3162(a)(2). The defendant must request this relief, however, and “[f]ailure of the defendant to move for dismissal prior to trial or entry of a plea of guilty or nol o contendere shall constitute a waiver of the right to dismissal under this section.” Id. ; see also United States v. Tenorio-Angel , 756 F.2d 1505, 1508 (11th Cir. 1985) (refusing to grant defendant relief for Speedy Trial Act violation because defendant failed to move for8 Aside from Jubal Register’s waiver of the remedy, we doubt that any violation of the Speedy Trial Act occurred. Despite the general 70-day deadline for the commencement of trials, the statute provides for a number of periods of excludable delay, including time “resulting from any pretrial motion,” 18 U.S.C. § 3161(h)(1)(F); reasonable time “when the defendant is joined for trial with a codefendant as to whom the time for trial has not run,” id. § 3161(h)(7); and delay resulting from a continuance if the judge finds “that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial,” id. § 3161(h)(8)(A). The record shows that large portions of the 38-month delay in this case were attributable to each of these reasons. See generallysuprapages 5-9. 14 dismissal of the indictment). Although Jubal Register on more than one occasion demanded a speedy trial and moved for re lease from prison based upon excessive pretrial detention, the record reveals that he never moved the court to dismiss the indictment, nor has he represented on appeal that he ever made such a request. He therefore has waived any right he may have had to the statutory remedy. 8 B. Disqualification of Counsel Charles Register contends that the district erred by disqualifying his attorney for two reasons. First, he argues that the evidence of the attorney’s wrongdoing was too tenuous to override his Sixth Amendment ri ght to be represented by counsel of his choice. Second, he claims that the circumstances surrounding the disqualification suggest that the government acted in bad faith to manufacture the conflict specifically for the purpose of depriving him of this Si xth Amendment right. We review a district court’s decision to disqualify a defendant’s attorney due to a conflict of interest for15 abuse of discretion. See Wheat v. United States , 486 U.S. 153, 163, 164, 108 S. Ct. 1692, 1699, 1700 (1988); United States v. Ross , 33 F.3d 1507, 1522 (11th Cir. 1994). The crux of Charles Register’s argument is that the law requires direct evidence of an actual conflict of in terest before disqualificati on of a criminal defendant’s attorney of choice is justified and th at the government did not produce any such evidence in this case. He relies primarily on two circuit court cases—United States v. Hobson , 672 F.2d 825 (11th Cir. 1982) (per curi am) and United States v. Fulton , 5 F.3d 605 (2d Cir. 1993)—to support this fo rmulation of the law. Neither Hobson nor Fultonsets out the rule that Charles Register infers from them. Hobsonaffirmed the disqualification of the defendant’s a ttorney where the government presented an affidavit of a witness expected to testify at trial who claimed that he and the attorney had discussed the attorney’s assisting th e witness in performing criminal activity related to the drug conspiracy for which the government was prosecuting the defendant. See Hobson , 672 F.2d at 826. Fultonreversed a district court’s acceptance of a defendant’s waiver of his attorney’s c onflict of interest whena witness, after the trial commenced, stated that he would testify that th e attorney had received a portion of the drug shipment that the witness ha d smuggled into the United States. See Fulton , 5 F.3d at 607-08. Thus, both Hobsonand Fultonaddress situations in which direct evidence existed of the attorney’s conf lict of interest with his client, but neither16 limits its holding to those circumstances. While attempting to construe these two cases to stand for an extremely na rrow formulation of the law allowing disqualification of counsel, Charles Registe r ignores the Supreme Court’s most recent teachings on this issue. In Wheat , the Court granted certiorari to resolve a “substantial disagreement” among the Courts of Appeals “about when a district court may override a defendant’s waiver of his attorney’s conflict of in terest.” 486 U.S. at 158, 108 S. Ct. at 1696. Wheatrecognized significant limits on a defe ndant’s right to be represented by counsel of his choice. Conceding that “the right to select and be represented by one’s preferred attorney is compre hended by the Sixth Amendment, ” the Court held that the more important protection that the Amendment affords is the assurance of a fair trial: “the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers.” Id. at 159, 108 S. Ct. at 1697. In addition to the defendant’s own Sixth Amendm ent interest in effective representation, the Court pointed out that federal courts ’ “independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them” may circ umscribe the right to counsel of choice. Id. at 160, 108 S. Ct. at 1698. Thus, the Court directed:17 The District Court must recognize a presumption in favor of petitioner’s counsel of choice, but that presum ption may be overcome not only by a demonstration of actual conflict but by a showing of a serious potential for conflict . The evaluation of the facts and circumstances of each case under this standard must be left pr imarily to the informed judgment of the trial court. Id. at 164, 108 S. Ct. at 1700 (emphasis added). The Court in Wheatdid not confine its allowance of disqualification to situations involving direct evidence of a conflict of intere st. Although it did not specifically address the nature of the ev idence sufficient to support disqualification, it did point out that district courts often mu st make a decision on this issue before all of the relevant information has crystalized: Unfortunately for all concerned, a di strict court must pass on the issue whether or not to allow a waiver of a conflict of interest by a criminal defendant not with the wisdom of hindsight after the trial has taken place, but in the murkier pre-trial context when relationships between parties are seen through a glass, darkly. The likelihood and dimensions of nascent conflicts of interest are notor iously hard to predict . . . . It is a rare attorney who will be fortunate enough to learn the entire truth from his own client, much less be fullyapprised before trial of what each of the Government’s witnesses will say on the stand. Id . at 162-63, 108 S. Ct. at 1699. This langua ge simply does not comport with a rule that the government must present direct evid ence of a conflict before the district court is authorized to disqualify a defendant’s chosen attorney. Moreover, it is a common tenet of modernAmerican jurisprudence that indirect evidence (often called “circumstantial” evid ence) is not intrinsically less valuable or18 less reliable than direct evidence. See generallyUnited States v. Henderson , 693 F.2d 1028, 1030 (11th Cir. 1982) (“Circumstantial evidence can be and frequently is more than sufficient to establis h guilt beyond a reasonable doubt. The test for evaluating circumstantial evidence is the same as in evaluating dir ect evidence.”); United States v. Sureff , 15 F.3d 225, 229 (2d Cir. 1994) (“Circumstantial evidence is . . . not a disfavored form of proof.”). That the Fe deral Rules of Evidence do not mention direct versus indirect evidence underscores the lack of a clear legal distinction between the
two. See 22 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice & Procedure § 5162, at 16 (1978) (describi ng frequent “over-simplification” of distinction between direct and circumstantial evidence); id. § 5163, at 37 (declining to discuss definitions of various forms of evidence, including “direct” and “circumstantial,” because “[m]ost of these sub-species are not recognized in the rules of admission and exclusion” and “none of these terms are us ed in the Evidence Rules”). Considering these acknowledgments of the potential significance of indirect evidence and in light of the Supreme Court’ s recognition of the need for the district court prior to trial to evaluate the “murky” issue of a defendant’s attempted waiver of his attorney’s conflict of interest, we c onclude that the law does not require direct evidence to support the court’s refusal to accept that waiver.9 Initially, the district court referred this matter to a magistrate judge in March 1994. Because the government did not want to disclose to the attorney its information regarding his possible involvement with the criminal activity, the magistrate judge complied with its request to conduct an ex parte, in camera hearing, appointing independent counsel to defend the interests of the attorney and Charles Register, who still wanted the attorney to represent him. Based upon the government’s evidence presented at the hearing, the magistrate judge ordered the attorney disqualified in June 1994. Charles Register moved the district court for reconsideration, and the court in October 1994 vacated the magistrate judge’s order, concluding that the ex parte, in camera hearing was insufficient to protect Charle s Register’s Sixth Amendment right to counsel of his choice. The district court thereafter conduc ted the full-scale hearing discussed in the text, infra

.
10 Because the record of this Garciahearing is sealed to protect the attorney in question, we refrain from quoting from the transcript of the hearing. We have reviewed that transcript carefully, and we summarize the evidence presented at the hearing, omitting the names of the witnesses and the participants (other than the defendants in this case) in the events they described. 19 Turning to the facts of this case, th e record shows that, as our precedent requires, the district court held a full-scale, adversarial hearing in order to evaluate the government’s evidence regarding the atto rney’s alleged involvement in the defendants’ illegal activities and Charles Register’s attempte d waiver of any conflict of interest. 9 See United States v. Garcia , 517 F.2d 272, 278 (1975) (requiring hearing to determine whether defendants competentlywaive right to conflict-free counsel); In re Paradyne Corp. , 803 F.2d 604 (11th Cir. 1986) (granting petition for writ of mandamus to prevent district court from considering government’s motion to disqualify in ex parte, in camera proceeding) . In this hearing, the government called five witnesses who presented evidence regarding four separate incidents illustrating the attorney’s possible involvement in the defendants’ drug-related activities. 1011 GarciaHearing Tr., R27 at 308-09.

12 Id. at 342. 20 The most damaging evidence was the testimony of a part-time confidential informant who had had a numbe r of conversations with Ch arles Register about drugs. In particular, the informant testified about one conversation in which Charles Register admitted having paid part of his atto rney’s fees with methamphetamine. 11 When subjected to extensive cross-examination on the subject, the informant reiterated his prior testimony and rejected the suggestion that he might have misunderstood Charles Register’s comments. He insisted that it was not possible that Charles Register meant only that he had paid his attorney with money earned from drugs. 12 The government elicited other evidence of more questionable admissibility in the course of the Garcia hearing. First, two witnesse s testified regarding an alleged plot between a codefendant (who was dismissed on the eve of trial) and the attorney to submit a false affidavit in order to obtain the return of seized money. One of these witnesses claimed to have participated inthe plan; the other stated that he had witnessed the planning and a portion of th e scheme’s implemen tation. Second, one witness stated that after he approached th e attorney for legal advice concerning state law enforcement officials’ disclosure to hi m of their suspicions of his drug activities, Bilbrey told the witness that the attorney had told Bilbrey of the officials’ inquiry.13 See GarciaHearing Tr., R28 at 395-419; R29 at 45-75.

14 Dist. Ct. Order Granting Gov’t Mot. to Disqualify, R12-150 at 9. See Fed. R. Evid. 801(d) (“A statement is not hearsay if . . . (2) . . . [t]he statement is offered against a party and is (A) the party’s own statement . . . .”).

15 Dist. Ct. Order, R12-150 at 9.

16 Id. at 9. 21 Finally, another witness pr ovided testimony suggesting that the attorney may have stored a gun at his office that belonged to Charles Register, a convicted felon. At the conclusion of the witnesses’ testimony, the district judge discussed in detail with both parties the issues of the admissibility of the testimony at trial and the standards that he needed to apply to determine whether he should disqualify the attorney. 13 In its order, the district court specifically found that the informant’s testimony regarding Charles Regist er’s statement that he paid his attorney’s fees partly in methamphetamine would be admissible at trial under Federal Rule of Evidence 801(d), which provides that a party’s own admissions are admissible as non-hearsay evidence if offered against him. 14 The district court conc luded that this evidence “alone [was] sufficient” to disqualify the attorney based upon a c onflict of interest. 15 Although the district court found the other gove rnment witnesses to be credible and stated that “the other alleged acts further link [the attorney] to the criminal organization,” the district court did not ru le on the potential admissibility at trial of evidence of any of the other alleged incidents. 1622 The district court’s ruling with respect to the informant’s testimony was correct: Charles Register’s alleged statements te nded to show by his own admission that he distributed methamphetamine, one of the crimes the indictment charged him with committing. The admissibility of evidence of the other alleged wrongful acts was less clear, even assessing that evidence, as the district court was required to do, without the benefit of the hindsight we enjoy. Despite the tenuousness of some of the evidence presented at the hearing, however , we cannot say that the district court abused its discretion when it disqualified Charles Register’s attorney. The informant’s testimony alone creat ed a situation analogous to those presented in Hobsonand Fulton ; in both cases, the defense attorney faced the serious possibility of needing to cross-examin e a witness who might give evidence implicating him in his client’s criminal activity. See Hobson , 672 F.2d at 826; Fulton , 5 F.3d at 610. In each case, the court determined that disqualification was appropriate, and we reach the same conclu sion here. It would have been virtually impossible for the attorney to question th e informant without being concerned to a significant degree about his own interests rather than those of his client. Even if Charles Register had employed backup counsel to conduct this cross-examination (an alternative to disqualification that Charle s Register proposed), the jury’s perception of the attorney likely would be tainted beyond repair after the presentation of this17 The fact that the government ultimately did not present the informant’s testimony at trial does not affect our analysis of the distri ct court’s ruling. As the Supreme Court recognized in Wheat , the district court must decide this issue prior to trial. See 486 U.S. at 162, 108 S. Ct. at 1699. It follows, therefore, that we also must evaluate the propriety of the district court’s decision as of that time.

18 The district court classified the conflict of interest based upon the informant’s testimony as an “actual conflict.” Dist. Ct. Order, R12-150 at 9. In our opinion, the term “serious potential for conflict of interest” more accurately describes these circumstances because, although the government represented to the court at the hearing that it intended to call the informant as a trial witness, an actual conflic t of interest would not occur until that situation developed at trial. This distinction does not a ffect our analysis, however. As the Supreme Court stated in Wheat , both actual conflicts and serious potential for conflict can justify disqualification of a defendant’s chosen attorney. See Wheat , 486 U.S. at 164, 108 S. Ct. at 1700. Indeed, the Wheat court noted that the district court must be allowed substantial latitude in refusing waivers of conflicts of interest not only in those rare cases where an actual conflict may be demonstrated before trial, but in the more common cases where a potential for conflict exists which may or may not burgeon into an actual conflict as the trial progresses. Id. at 163, 108 S. Ct. at 1699. 23 testimony. See Hobson , 672 F.2d at 828-29. 17 This scenario implicates both of the concerns that the Supreme Court in Wheatheld could justify overriding the presumption in favor of a defendant’s c hoice of counsel: the Sixth Amendment’s “guarantee [of] an effective advocate for each criminal defendant,” Wheat , 486 U.S. at 159, 108 S. Ct. at 1697, and the courts’ “i ndependent interest in ensuring . . . that legal proceedings appear fair to all who observe them,” id . at 160, 108 S. Ct. at 1698. In sum, we reject Charles Register’s argum ent that the government ’s evidence was too tenuous to justify the district court’s re fusal to accept his attempt to waive his attorney’s conflict of interest. 1824 We also decline to accept Charles Register’s second argument—that the government’s conduct suggests that it acted in bad faith to disqualify his attorney for the sole purpose of depriving him of his Si xth Amendment right to be represented by his preferred attorney—as a basis for fi nding that the district court abused its discretion. We acknowledge that several of the governme nt’s actions raise questions about its motivation in moving for the atto rney’s disqualification. First, the government previously had attempted to disqualify the attorney on the basis of multiple representations; it thenwaited more than a year before filing another motion to disqualify, this time based upon multiple representations and the attorney’s own alleged involvement in the de fendants’ criminal activities. Second, shortly after the district court ordered the attorney disqua lified, the government filed the superseding indictment that excluded all RICO char ges and, more significantly, omitted all references to “attorneys” participating in th e defendants’ conduct. On the eve of trial, the government also dismissed the indictme nt against the codefendant who allegedly plotted with the attorney to submit a false affidavit to recover se ized money. These actions diminished, if not destroyed, the re levance of much of the testimony that the government presented at the second Garcia hearing. Finally, of the four incidents it claimed justified disqualification, at trial, the government elicited evidence only of the25 attorney’s alleged disclosure to Bilbrey of law enforcement officials’ inquiry into one witness’s drug activities. Regardless of these facts, we cannot say that the district court’s decision was error. Strategic maneuvering by the government to disqualify defense attorneys whom it considered to be formidable opponents wa s one of the issues the Supreme Court addressed in Wheat . Although the Court acknowledged this possibility, it concluded that this concern did not affect its analys is or alter the degree of deference appellate courts must afford to trial courts: Petitioner of course rightly points out that the Government may seek to “manufacture” a conflict in order to prevent a defendant from having a particularly able defe nse counsel at his side; but trial courts are undoubtedly aware of this possibility, and must take it into consideration along with all of the other factors which inform this sort of a decision. Wheat , 486 U.S. at 163, 108 S. Ct. at 1699. Just as the district court must weigh the likelihood of a conflict of interest developing without the benef it of hindsight, the government also must consider the propriety of bringing a motion to disqualify before it knows the preci se course that the trial will take. In this case, the government brought its motion to disqualify the attorney based upon allegations of his involve ment in the defendants’ criminal activity nearly two years before the trial commen ced. In the meantime, a new United States Attorney took over the case, one defendant pleaded guilty, and the grand jury handed26 down a superseding indictment. It is unlikely that the government fully had developed its trial strategy when it filed the motion, and even if it already had done so, we cannot tell how these and other events influenced one another in the pro cess of generating the case we look back upon today. What is clear, however, is that both th e government and the district court found themselves in potentially no-win situations when the attorney’s possible involvement in the drug conspiracy first began to mate rialize. Had the government decided not to bring this information to the court’s attention and had the evidence come to light after the trial, Charles Register coul d have argued that the conflic t of interest deprived him of his right to conflict-free counsel. A si milar problem arose in United States v. McLain , 823 F.2d 1457, 1463-64 (11th Cir. 1987), overruled on other grounds by United States v. Lane , 474 U.S. 438, 106 S. Ct. 725 (1986), in which, unbeknownst to one of the defendants, his attorney wa s under investigation for criminal conduct by the same United States Attorn ey’s office that was conducting his trial. After the trial was over, the defendant learned that his attorney and the Assistant United States Attorney trying the case both had been awar e of the investigation, and that the government had identified the need to pos tpone indicting the defendant’s attorney until the conclusion of the trial. We ruled that these even ts deprived the defendant of his constitutional rights and ove rturned his conviction, noting that the attorney’s own27 interests directly conflicted w ith those of his client. See id. at 1464 (observing that the defendant’s attorney’s interests were served by a lengthy trial and a refusal to engage in plea negotiations w ith the government). Similarly, had the government here waited until the trial, or just prior to the trial, to disclose this information to the district court, the prejudice to the defendant w ould have been even greater because a replacement attorney would have ha d little time to prepare for trial. The district court faced an equally difficult problem once the government brought the potential conflict to its attenti on. As the Supreme Court explained in Wheat : [T]rial courts . . . face the prospect of being “whip-sawed” by assertions of error no matter which way they rule. If a district court agrees to the . . . representation, and the advocacy of counsel is thereafter impaired as a result, the defendant may well claim that he did not receive effective assistance. On the other hand, a district court’s refusal to accede to the . . . representation may [also] result in a challenge . . . . Wheat , 486 U.S. at 161, 108 S. Ct. at 1698 (citation omitted); cf. Fulton , 5 F.3d at 614 (reversing conviction after holding that di strict court improperly accepted defendant’s waiver of an actual conflict of interest). Th is possibility is one of the factors that led the Supreme Court to conclude that appellate courts must allow trial judges discretion in deciding issues of disqualification of c ounsel due to conflicts of interest; we cannot conclude, based upon the record be fore us, that the district court abused that discretion in this case.28 C. Notices of Lis Pendens Charles Register claims that he coul d not retain Hirsch after the court disqualified his chosen atto rney because the governmenthad filed notices of lis pendens against his only assets—two pi eces of property allegedly valued at $72,000—in anticipation of seeking forfeiture of those parcels as property used in connection with the criminal ac tivity alleged in the indictme nt. He contends that the district court erred by refusing to provide hi m with a post-seizure, pre-trial hearing to determine whether the government had proba ble cause to demand forfeiture (and thus to file the lis pendens notices). Charles Register relie s upon two tenets of constitutional law: first, that a defendant has a Sixth Amendment right to use his assets to hire an attorney of his choice to represent him; and second, that under the Fifth Amendment, the government must provide due process to those with an interest in property it seizes. Although both of these assertions are, in the abstract, correct statements of constitutional rights, neither applies to the circumstances in this case. Charles Register does have a right to hi re counsel of his choice, although as we explained in Part II.B, the “choice” element of this right is not always absolute. In Caplin & Drysdale, Chartered v. United States , 491 U.S. 617, 109 S. Ct. 2646 (1989), the Court addressed the argument that the fe deral criminal forfeiture statute violated the Sixth Amendment by failing to provide anexception for assets a defendant would29 use to retain an attorney. Noting its prio r holding that “‘[[a]] defendant may not insist on representation by an attorneyhe cannot afford,’” Id. at 624, 109 S Ct. at 2652 (quoting Wheat v. United States , 486 U.S. 153, 159, 108 S. Ct. 1692, 1697 (1988)), the Court bluntly stated, “[a] defendant has no Sixth Amendment right to spend another person’s money for serv ices rendered by an attorney, even if those funds are the only way that that defendant will be able to retain the attorney of his choice.” Id

. at 626, 109 S. Ct. at 2652. The Court used a familiar example to illustrate its point: A robbery suspect . . . has no Sixth Am endment right to use funds he has stolen from a bank to retain an attorney to defend him if he is apprehended. The money, though in his possession, is not rightfully his; the Government does not violate the Sixth Amendment if it seizes the robbery proceeds and refuses to permit the defendant to use them to pay for his defense. Id. , 109 S. Ct. at 2652-53. Assets subject to forfeiture are no diffe rent from the stolen bank money; they are not rightfully the defendant’s. The statute specifically provides that “[a]ll right, title, and interest in property [subject to fo rfeiture as] described in subsection (a) of this section vests in the United States upon the commission of the [criminal] act giving rise to forfeiture under this section.” 21 U.S.C. § 853(c). The Supreme Court approved this procedure in Caplin & Drysdale , concluding that “there is a strong governmental interest in obtaining full recove ry of all forfeitable assets, an interest that overrides any Sixth Amendment interest in permitting criminals to use assets30 adjudged forfeitable to pay for their defense.” Id. at 631; 109 S. Ct. at 2655; see also United States v. Bissell , 866 F.2d 1343, 1351 (11th Cir. 1989) (“[T]he right to counsel of choice belongs solely to criminal defendants possessing le gitimate, uncontested assets. . . . The appellants here had no Sixth Amendment right to use assets to the extent that those assets belonged to the Unite d States.”). In sum, if Charles Register’s property was forfeitable, any limitation on his access to t hose assets could not have violated his Sixth Amendment rights. Even accepting this fact, howev er, Charles Register conte nds that he had a Fifth Amendment right to a pre-trial hearing so that the district court could assess the likelihood that his property would be “a djudged forfeitable” at trial. Caplin & Drysdale , 491 U.S. at 631, 109 S. Ct. at 2655. Whether the Fifth Amendment requires such a hearing where the government has sei zed or restrained property in anticipation of forfeiture is a question the Supreme Cour t pointedly has avoided answering. See United States v. Monsanto , 491 U.S. 600, 615 & n.10, 109 S. Ct. 2657, 2666 & n.10 (1989) (“Monsanto III ,” a companion case to Caplin & Drysdale ) (where district court had held pre-trial probable cause hearing on forfeiture issue, holding “that assets in a defendant’s possession may be restrained in the way th ey were here based on a finding of probable cause to believe that the assets are forfeitable,” but refusing to31 decide “whether the Due Process Clause requires a hearing before a pretrial restraining order can be imposed.”). Most circuits have addressed this issu e either before or after Monsanto III and have concluded that the Fifth Amendment requires a pre-trial, though not necessarily a pre-seizure, probable cause hearing. See United States v. Jones , 160 F.3d 641, 647 (10th Cir. 1998) (requiring such hearing upon motion of the defendant, where defendant demonstrates that restrained a ssets are only ones withwhich she can retain counsel and provide for family); United States v. Michelle’s Lounge , 39 F.3d 684, 700-01 (7th Cir. 1994); United States v. Monsanto , 924 F.2d 1186, 1203 (2nd Cir. 1991) (“Monsanto IV ”); United States v. Crozier , 777 F.2d 1376, 1384 (9th Cir. 1985) (addressing same issue in context of re straining order entered ex parte under difference statute and requiring such hearing even where defendant did not allege that he needed assets to retain c ounsel); United States v. Lewis , 759 F.2d 1316, 1324-25 (8th Cir. 1985) (same as Crozier but noting that facts implicated Sixth Amendment right); United States v. Long , 654 F.2d 911, 915-16 (3d Cir. 1981) (same as Crozier ). We appear to be the only circuit holding that, although pre-trial restraint of assets needed to retain counsel implicates the Du e Process Clause, the trial itself satisfies this requirement. See Bissell , 866 F.2d at 1352-54 (reaching this conclusion after noting lack of significant delay prior to trial and district court’s ex parte probable cause19 See Black’s Law Dictionary932 (6th ed. 1990) (defining notice of lis pendens as “[a] notice filed on public records for the purpose of warning all persons that the title to certain property is in litigation , and that they are in danger of being bound by an adverse judgment.”) (emphasis added); Fla. Stat. Ann. § 48.23(1) (“(a) No action in any of the state or federal courts in this state operates as a lis pendens on any real or personal property involved therein or to be affected thereby until a notice of the commencement of the action is recorded in the office of the clerk of the circuit court of the county where the property is . . . . (b) . . . [T]he filing . . . shall constitute a bar to the enforcement against the property described in said notice of lis pendens of all interests and liens . . . unrecorded at the time of filing for record such notice of lis pendens . . . .”). 32 determination at time it issu ed warrant authorizing seizure). Although, in the appropriate case, we perhap s should re-examine Bissell in light of Monsanto III and its progeny, this case does not present us with occasion to do so because the action that Charles Register classifies as a “pre-tri al seizure” is in factmuch less than that. Here, prior to trial and the jury’s fi nding of forfeitability, the government did not “seize,” physically or otherwise, the property in which Charles Register claimed an ownership interest, and it did not obtain a restraining or der from the district court preventing Charles Register from disposing of th ese parcels of real estate. Instead, the government filed a notice of lis pendens pursu ant to Florida law, an action that had the effect of notifying the public (and in particular, prospective buyers or recipients of the land) that the government claimed an interest in the property. 19 Admittedly notices of lis pendens have the practical effect of impeding an owner’s ability to sell property, particularly at its (unrestricted) market value. As we recognized in Beefy King Int’l,20 Decisions issued by the former Fifth Circuit before October 1, 1981 are binding as precedent in the Eleventh Circuit. See Bonner v. City of Prichard , 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc). 33 Inc. v. Veigle , 464 F.2d 1102, 1104 (5th Cir. 1972), 20 “[t]he effect of a lis pendens on the owner of property . . . is constraini ng. For all practical purposes, it would be virtually impossible to sell or mortgage the property because the interest of a purchaser or mortgagee would be subject to the eventual outcome of the lawsuit.” Still, “the right to alienate the property . . . exist[s].” Chrysler Corp. v. Fedders Corp. , 670 F.2d 1316, 1323 (3d Cir. 1982). Moreover, even accounting for this pr actical consequence, notices of lis pendens affect only one inci dent of ownership—aliena bility—whereas other methods of securing potentially forfeitable property ar e significantly more restrictive. See United States v. James Daniel Good Real Property , 510 U.S. 43, 54, 114 S. Ct., 492, 501 (1993) (observing that outright seizure de prives the interest-holder of “valuable rights of ownership, including the right of sale, the right of occupancy, the right to unrestricted use and enjoyment, and the right to receive rents,” leaving him only “the right to bring a claim for the return of title.”). Even the most narrowly drawn restraining order legally woul d forbid the interest-holde r to sell the property or do anything to diminish its value.34 These distinctions have led the Supreme Court to conclude that the filing of a lis pendens does not implicate a property ow ner’s Fifth Amendment rights. In Kirby Forest Indus., Inc. v. United States , 467 U.S. 1, 104 S. Ct. 2187 (1984), the United States filed a notice of lis pendens and co mplaint of condemnati on with respect to a substantial amount of timberland, and the di strict court eventually entered judgment in favor of the landowner in the amount of th e value of the land plus interest from the date the government filed the complaint. Id. at 7-8, 104 S. Ct. at 2192-93. The Supreme Court struck down the interest aw ard, reasoning that, prior to the moment that “title passed to the United States,” the government never imposed any legal restriction on the landowner’s use of the property. Id. at 15, 104 S. Ct. at 2196. The Court stated: It is certainly possible . . . th at the initiation of condemnation proceedings, publicized by the filing of a notice of lis pendens , reduced the price that the land would have fe tched, but impairment of the market value of real property incident to otherwise legitimate government action ordinarily does not result in a taking. At least in the absence of an interference with an owner’s legal right to dispose of his land, even a substantial reduction of the attractiv eness of the property to potential purchasers does not entitle the owner to compensation under the Fifth Amendment. Id. , 104 S. Ct. at 2197 (citations omitted) (emphasis added) (footnote omitted). Similarly, in the civil forfeiture cont ext, the Supreme Court has recommended use of a lis pendens notice as a way for the government to preserve its rights in21 Although the point does not affect our holding, we note that the remedy Charles Register sought—the retraction of the notice of lis pendens—would not have had any effect upon his ability to compensate Hirsch for his services. According to the forfeiture statute, [a]ny such property [that is subject to forfeiture under subsection (a)] that is subsequently transferred to a person other than the defendant may [still be subject to forfeiture], unless the transferee establishes . . . that he is a bona fide purchaser for value of such property who at the time of purchase was reasonably without cause to believe that the property was subject to forfeiture under this section. 35 potentially forfeitable property without needof a hearing and without infringing upon the interest-holder’s due process rights. See Good , 510 U.S. at 58, 114 S. Ct. at 503 (ex parte seizure violates due process, and government can preserve its interests by using less restrictive means such as f iling a notice of lis pendens); see also United States v. 408 Peyton Road , 162 F.3d 644, 651 (11th Cir. 1998) (en banc ) (quoting Good ), cert. denied , — U.S. —, 119 S. Ct. 1500 (1999) ; Aronson v. City of Akron , 116 F.3d 804, 810-12 (6th Cir. 1997) (interpr eting Ohio forfeiture laws modeled on federal statutes but providing for filing of lien notice with respect to property allegedly subject to forfeiture; compari ng liens to notices of lis pendens and concluding that neither trigge rs due process requirements). In short, a filing of a lis pendens pursuant to state statute does not constitute a “seizure” and does not affect property interests to an extent significant enough to implicate the Due Process Clause of the Fi fth Amendment. Consequently, Charles Register was not entitled to a pre-trial h earing on the legitimacy of the government’s claim to his property under the criminal forfeiture statute. 2121 U.S.C. § 853(c). Hirsch obviously knew th at the property in question was subject to forfeiture, and thus even if Charles Register had managed to liquidate these assets and use the proceeds to pay Hirsch, once the jury found the property forfeitable, Hirsch would have had to turn the money over to the government.

22 Juror Number 6 already had sent another note asking whether she could bring a tape recorder to court so that she could study her lessons during recesses. The court did not allow her to do so.

23 The defendants contend that Juror Number 9’s comments referred to one of them, but the record indicates that at least her first remark and perhaps all of them concerned a witness. See Trial Tr., R38 at 477-79. 36 D. Juror Misconduct On the morning of the third day of trial, Juror Number 6, who was studying to become a paralegal, sent a note to the court 22 expressing concern that she had overheard Juror Number 9 make a comment to the effect that one of the defendants must be guilty because he was wearing veryexpensive clothing. The court inquired first of Juror Number 6, who stated thatshe had overheard Juror Number 9’s comment when she was studying and that the comme nt had caught her attention because it sounded inappropriate. The judge then calle d Juror Number 9 into the courtroom; she repeatedly denied having formed any opinions as to the guilt of any of the defendants. She admitted having commented about the app earance of some of the participants but stated that she merely had observed that one of the witnesses who was surrounded by “attorneys” was “cute” and that one person was wearing a beautiful suit and very nice shoes. 23 When the judge inquired a final time as to whether she had formed an24 Id. at 478.

25 See Trial Tr., R50 at 2268-69. 37 opinion as to any defendant’s guilt or i nnocence, she replied, “We have 159 more witnesses to listen to. So I think it is im possible to form any opinion at this time.” 24
The court denied the defendants’ motions to remove Juror Number 9 and, in the alternative, for a mistrial. On day eight, the court finished charging th e jury at 3:55 p.m. It instructed the jury to go into the jury room and decide whether it wanted to begin deliberations or go home for the day and then to let the court know its decision. The jurors left the courtroom at approximately 4:00 p.m.; shortlythereafter they sent a note stating that they would like to leave at 4:30 p.m. and r econvene at 9:00 a.m. The judge called the jurors back into the courtroom and approved this schedule; he then instructed them not to discuss the case with anyone and stated , “We’re going home tonight. . . . Have a pleasant evening.” 25 The clerk’s notes reflect that the judge excused the jury for the night at 4:35 p.m. The next morning, the court began by addressing two notes from Juror Number 6. The first, which she had handed the marshal as she was leaving the afternoon before, stated “Your Honor, I ask for myself only. I have knowle dge of some laws. Am I permitted to use this knowledge or not to convey to the other jurors? Please let26 Trial Tr., R51 at 3.

27 Id. at 4.

28 Id. at 12. 38 me know your opinion on this.” 26 Juror Number 6 sent the second note when she arrived that morning; it stated, “There was mentioned [sic] of a search warrant. Why do we not have it as evidence?” 27 The government’s attorney then reported that he had observed Juror Number 6’s husband speaking with Charles Register’s girlfriend—whom the court had allowed to sit at the defens e table during trial as his “case agent”—and gesturing at the government’s attorney following closing arguments the day before. He also reported that Charles Regis ter’s attorney had approached him after he completed his re buttal argument and complained that the government’s attorney had drawn an infere nce that a search warrant not introduced into evidence clearly disproved. Defendant s’ counsel did not dispute the “gesturing” assertion and otherwise agreed that thes e events had transpired. After a short discussion with counsel about how to proceed , the court instructed the jurors to stop deliberating. The district court observed that base d upon this information and Juror Number 6’s “inquisitive mind,” 28 it was difficult to believe that no external communication had occurred. The court listened to the parties’ arguments regarding whether it should29 Trial Tr., R51 at 25. 39 inquire of Juror Number 6: the defendants’ attorneys wanted the court to ask why she raised the question about the search warrant, whereas the government took the position that the court was authorized to excuse the juror without conducting any further inquiry. Although the judge stated th at he expected her to claim not to have talked to anyone about the cas e, he took a brief recess to determine whether the law allowed him to excuse the juror without questioning her. Relying upon United States v. Barker , 735 F.2d 1280 (11th Cir. 1984), he deci ded that the better procedure was to inquire of the juror, and after consulting with the parties about what questions to ask, called Juror Number 6 into the courtroom. When the judge asked Juror Number 6 about her reasons for sending the notes, she replied that because of her knowledge of the law, she “wanted to see if that search warrant was directed specifically to the safe itself. And if it was, then I want to know why they went out of the scope of consent into the other rooms to get the weapons if they were supposed to go directly to the safe.” 29 She stated that she had not had contact with anyone not connected to the case but that she had been reading her paralegal materials and atte nding classes. She denied having discussed the case with her husband, although she admitted that he had attempted to ta lk with her about it. At30 Id. at 27. 40 the conclusion of this inquiry, the court decided to dismiss Juror Number 6 but determined that she had not poisoned the other jurors: I am satisfied by the sequence of events in here that this juror is not credible. Her demeanor, he r answers, and her conduct throughout the trial, and by the very nature of the inquiries that have been passed in the notes in here, that she doe s not appear to be credible. I will now further enlarge upon my reasons for dismissing her: There has been no prejudice, as I can s ee, to the defendants. As we all know, this jury deliberated for less th an a half an hour yesterday. And deliberations, if any, this morning have not taken more than 15 or 20 minutes of time. The other jurors, th e alternate jurors, have been here at all times and heard everything that ha s gone on in the courtroom with the other jury present. I shall ask that Alternate Juror Number 1 replace this juror, and that we instruct the jury to begin their deliberations all over again from the beginning, and start from there. 30 All defendants objected both to the remova l of Juror Number 6 and the replacement of her with an alternate juror; they moved for the court either to retain Juror Number 6 or for a mistrial. None proposed pro ceeding with 11 jurors. The defendants also requested the court to ask the remaini ng jurors whether Juror Number 6 had mentioned the search warrant to them, but it refused. The court reconvened the entire jury, incl uding the first alternate, and instructed them that they had to “resume [their] de liberations right from the beginning. This [alternate] juror was not in the jury room and has not heard any of the discussions that31 Id. at 33-34.

32 The defendants also challenge the district court’s decision to retain Juror Number 9 after Juror Number 6 reported overhearing Juror Number 9 drawing inappropriate conclusions about one defendant’s guilt on the second day of trial. We have examined the record and find no error in the district court’s decision to retain Juror Number 9. 41 you had. . . . [Y]ou have to start all over, right from the beginning, as though you are just being sent out now to discuss this case.” 31 The court also reite rated that they were to follow the law as he had given it to th em and that considering their own opinions about the law or any information other than the court’s instructions would violate their duty as jurors. Finally, the court informed th em that they were not to worry about any information that was not in evidence, includi ng any reference to a search warrant. The newly convened jury began de liberating late in the morn ing on the ninth day of the trial. The court dismissed them for the day at 4:45 p.m., and theybegan again the next morning. The jury reached its verdict at 3:00 p.m. that afternoon. The defendants challenge thr ee aspects of the district court’s treatment of the problems that arose with respectto Juror Number 6: (1) the court’s finding that Juror Number 6 was not credible and decision to dismiss her from the jury; (2) the court’s refusal to inquire of the other jurors to determine whether they had been prejudiced by exposure to extrinsic information; and (3) the court’s decision to replace Juror Number 6 with an alternate juror after deliberations had begun. 3242 Federal Rule of Criminal Procedure 23(b) permits the district court “to excuse a juror for just cause after the jury has retir ed to consider its verdict.” We review a district court’s decision to remove a juror for abuse of discretion. See United States v. Smith , 918 F.2d 1501, 1512 (11th Cir. 1990); United States v. Giarratano , 622 F.2d 153, 157 (5th Cir. 1980). Just cause to discharge a juror exists where the district court finds evidence that the juror has had improper extrinsic contact, see, e.g. , Barker , 735 F.2d at 1282 (excusing juror observed putti ng her hand on defendant’s shoulder and smiling), or where it finds that the juror fo r some other reason cannot decide the issues fairly, see United States v. Geffrard , 87 F.3d 448, 451-52 (11th Cir. 1996) (excusing juror who expressed inability to follow judge’s instructions on the law due to religious beliefs); Smith , 918 F.2d at 1512 (excusing juror who was upset that jury deliberations would interfere with plans to spend holiday s with family). When a juror’s alleged improper conduct is brought to th e court’s attention, the court also enjoys substantial discretion in “choosing the investigative procedure to be used in checking for juror misconduct,” United States v. Harris , 908 F.2d 728, 733 (11th Cir. 1990), although “[j]uror misconduct concerning outside influences must be fully investigated to determine if any misconduct actually occurre d and whether or not it was prejudicial,” id. We will reverse the district court only if we find that it discharged the juror43 “without factual support, or for a legally irrelevant reason.” Smith , 918 F.2d at 1512 (internal quotation omitted). We conclude that the district court di d not abuse its discretion in deciding to discharge Juror Number 6 or in refusing to inquire of the remaining jurors to determine whether they had b een tainted by Juror Number 6’s conduct. This case had been in trial for nearly two weeks when this incident occurred; the judge had had significant opportunity to observe the juro rs and previously had questioned Juror Number 6 in connection with the incident involving Juror Number 9. From the evidence that Juror Number 6’s husband ha d had a conversation with someone close to the defendant the afternoon before, and that Juror Number 6 immediately asked that morning about an issue that the defendants had been upset about the day before, the judge reasonably inferred that a strong possibility existed that Juror Number 6 had engaged in improper conduct and that the de fendants indirectly had conveyed extrinsic information to her. Following our instructions in prior cases, however, the judge conducted a brief hearing to determine Juror Number 6’s reasons for asking her questions, and she admitted having consu lted outside information—her books and classes—during the course of the trial. A ll of this information was sufficient for the trial court to discharge her because she had engaged in improper conduct.33 Trial Tr., R51 at 13. 44 The defendants emphasize the statemen t that the judge made before he questioned her—“Let’s be practical. I exp ect her to say that she hasn’t talked to anyone” 33 —and argue that this conclusion demons trates that he improperly decided to excuse Juror Number 6 regardless of he r answers to his questions. The district court should not have speculated about Juro r Number 6’s anticipated response to its questions and should have completed its investigation before drawing conclusions about the propriety of allowing her to remain on the jury. We note that at the time the judge made this statement, however, he had ample information to support a decision to excuse Juror Number 6. Moreover, the court already had complied with our requirement that it must investigate and hold a hearing on the issue of outside influence and its possible prejudicial e ffect before excusing the juror. See Harris , 908 F.2d at 733. In short, our examination of the record reveals both factual and legal support for Juror Number 6’s dismissal, independent of the judge’s inappropriate remark. His decision therefore was not an abuse of discretion. See Smith , 918 F.2d
at 1512. The defendants next contend that the j udge’s determination that the jury had been tainted by extrinsic ev idence created both a presump tion of prejudice shifting the burden to the government to establish a lackof prejudice and an obligation to inquire45 of the remaining jurors whether the inappr opriate information had influenced their ability to decide the case impartially. The defendants cite United States v. Martinez , 14 F.3d 543, 550 (11th Cir. 1994) in support of their position. The premise of this argument—that the court concluded that the jury had been tainted by extrinsic evidence—is incorrect. In th is case, the district court determined that Juror Number 6 had been exposed to inappropriate info rmation, but found no indication that Juror Number 6 had passed that information along to the other jurors. This case is easily dis tinguishable from Martinez , in which we concluded that the trial court erred in finding lack of prejudice after the jury foreperson sent a note to the judge stating that the jury had debated information about the case that one juror read in the newspaper. See 14 F.3d at 547. In Martinez , the district court conducted a more thorough probe, questioning each juror individually, only after its initial inquiry of the foreperson (who sent the note) revealed extremely serious concerns about the jury’s decision-making process: [The foreperson] . . . reported that she and other jurors discussed [the offending juror]’s conduct and opinion with her in front of all the jurors. [The foreperson] also stated that sh e believed [that juror] influenced at least one other juror, and that the jurors argued the entire day of March 19, and all morning on March 20 with some jurors accusing [the offending juror] of harboring prejudice against the government.46 Id. In contrast with Martinez , the initial investigation thatthe district court conducted in this case did not provide any indication that the jury had deliberated under the influence of extrinsic information. As the judge noted, Juror Number 6 had little opportunity to influence the remaining jurors as the jury had spent little time together the afternoon before and that morning before he ordered them to stop de liberating. The record also reveals that Juror Number 6’s note about i ndependent legal information inquired as to whether she could share her knowledge with the other jurors and stated that she was asking for herself only; that the jurors likely had sp ent most of the first afternoon developing a schedule rather than discussing the merits of the case; and that she did not send the note about the search warrant until the firs t morning of deliberations. All of this information supports the reasonableness of the district court’s conclusion that only Juror Number 6 had been exposed to ina ppropriate outside contact. Moreover, had the court inquired into any possible discussi ons that the jurors may have had about a search warrant, it risked interfering with their thought processes or overemphasizing the warrant’s absence and creating a concern about the issue as a result of the inquiry. Under these circumstances, we find no error in the method the district court employed to investigate the extrinsic c ontact or in the conclusion it reached that the jury had not been tainted.34 The defendants contend that the district court also violated Rule 23(b), which contemplates a jury of 11 members deciding the case if, after deliberations commence, the judge finds it necessary to dismiss a juror for cause: Jury of Less Than Twelve. Juries shall be of 12 but at any time before verdict the parties may stipulate in writing with the approval of the court that the jury shall consist of any number less than 12 or that a valid verdict may be returned by a jury of less than twelve should the court find it necessary to excuse one or more jurors for any just cause after trial commences. Even absent such stipulation, 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

. Fed. R. Crim. P. 23(b) (emphasis supplied). We conclude that the district court’s impaneling of the alternate juror in this case did not violate this rule. Although it is true that Rule 23(b) does 47 Finally, the defendants argue that the di strict court committed per se reversible error by failing to discharge the alternate juro rs prior to the start of deliberations and by impaneling an alternate juror after delib erations had begun. We evaluate this contention “under a de novo standard, as it presents a question of pure law.” United States v. Acevedo , 141 F.3d 1421, 1423 (11th Cir. 1998). After the jury charge, the district court directed the alternate jurors to retire to a separate room while the regular jurors deliberated. He instructed them not to discuss the case with anyone, including each other, and told them that they coul d not leave because the court still might need their services if one of the regular juro rs became unable to complete deliberations. The government concedes that the distri ct court failed to follow Rule 24(c) of the Federal Rules of Criminal Procedure, wh ich states: “An alternate juror who does not replace a regular juror sha ll be discharged after the jury retires to consider its verdict.” 34 We do not apply a per se reversal standard to Rule 24(c) violations,not explicitly sanction substitution of an alternate after deliberations have begun, this rule simply discusses situations in which 11-member juries are allowed ; it does not purport to catalog which of the full range of possible resolutions of problems presented in the case are permitted and which are forbidden. Thus, Rule 23(b) does not expressly or by implication prohibit the course of action the district court chose.

35 Decisions by Unit B of the former Fifth Circuit issued after September 30, 1981 are binding on this court. See Stein v. Reynolds Sec., Inc. , 667 F.2d 33, 34 (11th Cir. 1982). 48 however. See Acevedo , 141 F.3d at 1423 (citing United States v. Phillips , 664 F.2d 971, 994, 996 n.21 (5th Cir. Unit B Dec. 28, 1981)), 35 cert. denied— U.S. —, 119 S. Ct. 1048 (1999). Instead, we employ the harm less error test and reverse the district court only where “there is a reasonable possib ility that the district court’s violation of Rule 24(c) actuallyprejudiced [the defendant] by aff ecting the jury’s final verdict .” Acevedo , 141 F.3d at 1424. If the district court took significant procedural safeguarding measures that effectively “n eutralized the possible prejudice” to the defendants, and if “[o]n the record before us we cannot discern that appellants were prejudiced by the substitution,” we will uphold the verdict. Phillips , 664 F.2d at 996. In Phillips , the jury had deliberated for one and half days when one juror became too ill to continue. Before impaneling one of the re tained alternate jurors, the court took several steps to ensure that the substitution would not prejudice the defendant: it “sequestered the alternate during the preliminary jury deliberations,” questioned the jurors indivi dually about their ability to set aside their previous discussions, and instructed the newly impane led jury to start its deliberations over49 from the beginning. Phillips , 664 F.2d at 996; see also Barker , 735 F.2d at 1282-83 (noting that trial court “meticul ously met the demands of Phillips ,” including ascertaining “that the jury could pro ceed on an impartial basis and begin its deliberations over again,” explaining the or iginal juror’s excusal in a nonaccusatory manner, instructing the jurors “to begin an ew,” and hearing no e xpression by any juror of an inability to follow these instructions). In this case, the judge also took precauti ons to make sure that the deliberations of the newly impaneled jury we re fair. The court required the alternates to wait in a separate room when the original jury retir ed to deliberate and in structed them not to discuss the case. After Juror Number 6’s dismissal, the court called the eleven remaining jurors and the two alternates into the courtroom, reinstructed them on the importance of applying the law as he ha d given it to them without considering information not in evidence, and repeatedly told them that they must start over as if they never had begun their deliberations because the alternate juror needed to participate fully in the d ecision-making process. Although concededly these measures were not as thorough as those described in Phillips , we note that stronger precautions may have been necessary in that case because the original jury already had deliberated for one and a half days when the substitution occurred. Here, in c ontrast, the jury had had the case for less than one hour.36 Finally, we note a recent proposed change in Rule 24(c) reflecting that the Supreme Court now considers the exact procedure employed by the district court in this case to be a perfectly acceptable method of addressing situations in which it must discharge a juror after deliberations have begun: Retention of Alternate Jurors. When the jury retires to consider the verdict, the court in its discretion may retain the alternate jurors during deliberations. If the 50 As the Phillips case emphasizes, the ultimate question we must decide is whether the record indicates a reasonable possibility of prejudice to the defendants. Specifically, we noted in Phillips that “[t]he most substantial concern about substitution of an alternate juror after delib erations have begun is that the alternate might be coerced by jury members who might have already formulated positions or viewpoints or opinions.” 664 F.2d at 995. Given the brief time that the original jury deliberated in this cas e, and that the record reflects that it spent a significant portion of that time on procedural, rather than substantive, matters, we do not think the substitution prejudiced the defendant. The c ourt impaneled the alte rnate juror late one morning; the new jury then deliberated the re st of that day, started again the following morning, and reached a verdict at 3:00 p. m. in which they found each defendant guilty of some counts and not guilty of others. Under these circumstances, the only reasonable conclusion we can draw is that the alternate juror participated fully and impartially in reaching the fina l verdict. In sum, the district court’s failure to follow the letter of Rule 24(c) or to avail itsel f of Rule 23’s 11-member jury option did not prejudice the defendant, and the court’ s error, therefore, was harmless. 36court decides to retain the alternate jurors, it shall ensure that they do not discuss the case with any other person unless and until they replace a regular juror during deliberations. If an alternate replaces a juror after deliberations have begun, the court shall instruct the jury to begin its deliberations anew. Fed. R. Crim. P. 24(c)(3) (proposed April 26, 1999). This rule, announced by the Supreme Court, intimates that such a procedure does not deprive defendants of any rights. It will take effect December 1, 1999 unless Congress provides otherwise. 51 AFFIRMED.