United States v. Larry Kelly, Jr., 875 F.3d 781

Defendant Larry W. Kelly, Jr. convicted after two-day trial for being a felon in possession of a firearm and ammunition (18 U.S.C. § 922(g)(1)).
After closing and instructions the court erroneously failed to dismiss the alternate juror; she returned to the jury room with the twelve jurors and deliberations began.
The error was discovered ~30 minutes later; the court removed and discharged the alternate, instructed the jurors to "begin anew," and apologized.
The court later individually questioned each juror out of earshot of others; each juror said they followed the instruction and that the verdict was reached solely by the twelve regular jurors.
Kelly moved for a mistrial and for a new trial under Fed. R. Crim. P. 24(c); the district court denied relief, citing the curative instruction, juror assurances, brevity of the alternate’s presence, and overwhelming evidence.
The Fifth Circuit affirmed, holding the Rule 24(c) violation was not per se reversible and the district court did not abuse its discretion in denying relief.

Issue	Plaintiff's Argument (Kelly)	Defendant's Argument (Government)	Held
Whether the district court’s failure to dismiss an alternate and permitting her presence during deliberations violated Rule 24(c)	Presence of alternate juror in jury room constituted a Rule 24(c) violation that prejudiced Kelly and requires mistrial/new trial	Error occurred but was curable; no reasonable possibility of prejudice given curative steps	Rule 24(c) was violated but not per se prejudicial; no abuse of discretion in denying mistrial/new trial
Whether an alternate’s mere presence requires automatic reversal	Alternate’s participation taints deliberations and cannot be "unheard" after comments are made	Presence alone is not inherently prejudicial; harmlessness depends on circumstances and curative measures	Presence is not per se reversible; prejudice must be shown
Whether the district court’s curative measures (instruction and individual juror questioning) were sufficient	Curative measures cannot erase influence of alternate once heard	Curative instruction plus individual polling can cure potential prejudice	Curative instruction and individual juror assurances were adequate here
Appropriate standard of review for denial of mistrial/new trial	N/A (argues district court abused discretion)	N/A (argues discretion not abused)	Abuse-of-discretion review; court did not abuse discretion

United States v. Olano, 507 U.S. 725 (1993) (presence of alternates during deliberations is error but not automatically reversible)
United States v. Acevedo, 141 F.3d 1421 (11th Cir. 1998) (curative "clean slate" instruction can cure alternates' participation)
United States v. Myers, 280 F.3d 407 (4th Cir. 2002) (alternate presence during deliberations deviates from Rule 24(c))
United States v. Aguilar, 743 F.3d 1144 (8th Cir. 2014) (alternate’s presence during deliberations violates Rule 24(c)(3))
United States v. Houlihan, 92 F.3d 1271 (1st Cir. 1996) (pre-amendment authority treating presence of alternates as prohibited)