United States v. Ibrahim Yousef , 357 F. App'x 147 ( 2009 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT DEC 10 2009
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
UNITED STATES OF AMERICA, No. 08-50258
Plaintiff - Appellee, D.C. No. 2:06-cr-00660-GAF
v.
MEMORANDUM *
IBRAHIM A. YOUSEF,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Gary A. Feess, District Judge, Presiding
Argued and Submitted July 9, 2009
Pasadena, California
Before: WARDLAW, RAWLINSON and N.R. SMITH, Circuit Judges.
Appellant Ibrahim A. Yousef (Yousef) challenges the district court’s denial
of his motion for a mistrial and motion for a new trial premised on the participation
of two alternate jurors during jury deliberations in violation of Federal Rule of
Criminal Procedure 24(c).
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
“We generally review the district court’s denial of a motion for a mistrial for
abuse of discretion.” United States v. Banks, 514 F.3d 959, 973 (9th Cir. 2008)
(citations omitted). “We [also] review for abuse of discretion a district court’s
denial of a motion for a new trial.” United States v. Moses, 496 F.3d 984, 987 (9th
Cir. 2007) (citations omitted).
The participation of the alternate jurors in jury deliberations was no doubt a
violation of Federal Rule of Criminal Procedure 24(c). See United States v. Olano,
507 U.S. 725, 737 (1993). However, the mere presence of alternate jurors does not
warrant a reversal, given appropriate jury instructions. See id. at 740-41. When a
district court instructs a newly reconstituted jury to begin deliberations anew, we
should presume that the jury’s deliberations conformed to that instruction. See
United States v. McFarland, 34 F.3d 1508, 1514 (9th Cir. 1994); see also Olano,
507 U.S. at 740 (“It is the almost invariable assumption of the law that jurors
follow their instructions.”) (citation and alteration omitted). The district court,
therefore, did not abuse its discretion when it denied Yousef’s motion for a mistrial
and motion for a new trial. Once alerted to the violation, the district court
immediately removed the alternate jurors from the deliberations; the alternate
jurors’ testimony reflected that their participation was not significant; and the
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district court properly instructed the jury to restart its deliberations and to ignore
any contributions made by the alternate jurors.
AFFIRMED.
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