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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.

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
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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."
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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
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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.
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