IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 91-2807

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JESUS QUIROZ-CORTEZ,

Defendant-Appellant.

 

Appeal from the United States District Court

for the Southern District of Texas

 

(April 28, 1992)

Before GARWOOD, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

Jesus Quiroz-Cortez appeals his conviction for conspiracy to

possess over 50 kilograms of marijuana with intent to distribute

and aiding and abetting the substantive offense. Quiroz-Cortez

raises only one point of error--that the district court violated

Fed. R. Crim. P. 24(c) in replacing a juror who was hard of hearing

with an alternate juror after the jury had begun its deliberations

and the alternate juror had been dismissed. We find that this

violation of Fed. R. Crim. P. 24(c) was harmless error and affirm.
2

I.

 The case was tried on May 9, 1991. On May 10, the district

court dismissed the two alternate jurors, thanked them for their

service and told them that they "cannot discuss the case with

anybody, including yourselves until you know for a fact that the

jury verdict has been returned." The two alternate jurors then

left the courtroom. 

The jury retired to deliberate. About forty-five minutes

later, the jurors broke for lunch. Soon after the jurors

reconvened to continue their deliberations, the district court

learned that a juror, Jose Borrego, was hard of hearing and may not

have heard all of the trial testimony. After questioning this

juror in the presence of counsel, the court asked whether the

parties wanted him to excuse Borrego and replace him with one of

the dismissed alternate jurors. Both parties stated that they

wished to have Borrego excused. 

The district court offered to call the first alternate juror

to replace Borrego. The prosecution had no objection. However,

the defense counsel stated:

"I just--is there--would there be any--I don't know. The

question in my mind is that person is now out of the--out

of the building--out of the marshal's control. . . ."

The district court offered to question the alternate juror as to

whether she had discussed the case outside the courtroom, noting

that the alternate juror was no more exposed to outside influence

than the jurors who left the courtroom to go to lunch. 
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The defense counsel, however, stated that the "best

alternative for me would be to make--to ask for a mistrial, Your

Honor." The defense counsel declined to consent to an eleven

person jury. The district court replied that "a motion for a

mistrial is denied," to which the defense counsel stated, "[t]hen

I would settle for the first alternate [juror]." 

The district court called the jury into the courtroom and

explained that Borrego had been excused because he may not have

heard all the testimony and that the first alternate would replace

Borrego. The district court told the jury to "quit talking about

the case . . . until we bring the alternate in." The district

court further instructed the jury that

"you all are going to have to start from the start with

regard to deliberations because she [the alternate juror]

obviously was not present to hear what you had

deliberated. So, you all will have to start all over

again with regards to your deliberations. You haven't

deliberated that long as far as time, but you will have

to start all over again so that she can have the benefit

of the entire deliberations." 

After these instructions, the district court sent the jury back

into the jury room. When Ms. Maria Alfaro, the first alternate

juror, returned to the courtroom, the district court asked her

twice whether she had "discussed [the case] with anybody at all"

since she was released. Ms. Alfaro responded that she had not.

The district court then instructed Ms. Alfaro that the jury would

have "to start deliberating again with you present, so that you

will have the benefit of hearing everything that was said and so,

I'm going to ask you to deliberate in the case. . . . And I have
4

told them to start from the start all over again so that you can

have the benefit of everything that was being discussed." 

After giving these instructions to Ms. Alfaro, the district

court called the jury back into the courtroom and told them that

Ms. Alfaro was "ready to start deliberating with you all" and that

the jury should "go ahead and start from the start with regards to

your deliberations." The district court reminded the jury for a

second time that Ms. Alfaro "does have to have benefit of

everything that you've conducted so far, so go ahead and start from

the start with regards to your deliberations." 

After an hour and a half of further deliberations, the jury

reached a verdict, finding Quiroz-Cortez guilty of conspiracy to

possess marijuana with intent to distribute and aiding and abetting

the substantive offense.

II.

Quiroz-Cortez contends on appeal that the district court

violated Fed. R. Crim. P. 24(c) by replacing a juror with an

alternate juror after the jury had begun deliberations. Rule 24(c)

provides in relevant part that "alternate jurors in the order in

which they are called shall replace jurors who, prior to the time

the jury retires to consider its verdict, become or are found to be

unable or disqualified to perform, their duties." (emphasis added)

The rule further provides that "[a]n alternate juror who does not

replace a regular juror shall be discharged after the jury retires

to consider its verdict." 
5

Rule 24 (c) does not explicitly prohibit substitution of

alternate jurors after the jury begins its deliberations. However,

the rule's language and the weight of authority indicates that Rule

24(c) forbids such a practice. United States v. Huntress, Slip Op.

91-5626, at 3543 (5th Cir. March 18, 1992); United States v.

Josefik, 753 F.2d 585, 587 (7th Cir. 1985); United States v.

Hillard, 701 F.2d 1052, 1057-58 (2d Cir. 1983). 

An alternate juror replacing a regular juror after the jury

has commenced its deliberations may be unable to participate

equally with the other jurors, because he will lack the benefit of

the prior deliberations. There is a danger that the other jurors

will have "already formulated positions or viewpoints or opinions"

in the absence of the alternate juror and then pressure the

newcomer into passively ratifying this predetermined verdict, thus

denying the defendant the right to consideration of the case by

twelve jurors. United States v. Phillips, 664 F.2d 971, 995-96

(5th Cir. 1981); 2 C. Wright, Federal Practice and Procedure, § 388

at 392-93 (1982). 

Rather than replace a regular juror with an alternative juror

after the jury has begun its deliberations, the proper procedure is

for the district court to proceed with an eleven-person jury.

Under Fed. R. Civ. P. 23(b) as amended in 1983, the district court

has discretion to allow an eleven-person jury to return a verdict,

if "the court finds it necessary to excuse a juror for just cause

after the jury has retired to consider its verdict." This court

has held that the district court is required to "allow an eleven-
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member jury to proceed to verdict or grant mistrial," if a regular

juror has been dismissed after deliberations have begun. Huntress,

at 3543.

If the defendant suffered no prejudice from the late

substitution of an alternate juror, the error is harmless and the

conviction stands. Huntress, at 3544; United States v. Helms, 897

F.2d 1293, 1299 (5th Cir. 1990); Phillips, 664 F.2d at 993. We

evaluate prejudice to the defendant by examining, among other

things, the length of the jury's deliberations before and after

substitution of the alternate and the district court's instructions

to the jury upon substitution charging the jury to begin its

deliberations anew. Id. at 995-96. In doing so, we keep in mind

that defendant was not entitled to twelve jurors.

There is little risk of prejudice from the late substitution

in this case. The jury had deliberated for only forty-five minutes

before the substitution. The judge substituted only after

repeatedly and explicitly instructing the jury to "start all over

again with regards to your deliberations" because the alternative

juror "need[s] to have benefit of everything you've conducted so

far." The new jury, including the alternate juror, then

deliberated for an hour and a half before reaching a verdict.

The alternate juror's exposure to influences outside the

courtroom was also minimal. Before dismissing the alternate juror,

the district court carefully instructed the alternate juror not to

discuss the case. The alternate juror twice told the court that

she had complied with the court's instructions by not discussing
7

the case outside the courtroom. We find that the defendant

suffered no prejudice from the alternate juror's brief absence from

the courtroom and the error in the late substitution was harmless.

United States v. Barone, 83 F.R.D. 565, 573 (S.D. Fla. 1979).

We have found harmless error in cases with a greater risk of

prejudice. In Huntress, for instance, the jury had deliberated for

a whole day before the district court substituted the alternate

juror, and the alternate juror admitted that she had spoken about

the case with her employer. We held that the substitution, while

error, was not prejudicial, given the district court's careful

questioning of the alternate juror and the alternate juror's

assurance that she did not discuss the substance of the evidence.

Huntress, at 3545. 

AFFIRMED.