United States v. Wayne James

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________

No. 19-1250
______________

UNITED STATES OF AMERICA

v.

WAYNE A.G. JAMES,
Appellant
______________

Appeal from the District Court
for the Virgin Islands
(No. 3:15-cr-00042-001)
District Judge: Hon. Curtis V. Gomez
______________

Submitted Under Third Circuit L.A.R. 34.1(a)
December 12, 2019
______________

Before: SMITH, Chief Judge, McKEE, and SHWARTZ,
Circuit Judges.

(Filed: April 3, 2020)
 _________________

OPINION
_________________

Brian A. Benczkowski
Annalou Tirol
Amanda R. Vaughn
United States Department of Justice
Criminal Division, Public Integrity Section
1400 New York Avenue, N.W.
Washington, DC 20005

Gretchen C.F. Shappert
Delia L. Smith
Office of the United States Attorney
5500 Veterans Drive
United States Courthouse, Suite 260
St. Thomas, VI 00802

Counsel for Appellee

Gabriel J. Villegas
Federal Public Defender District Virgin Islands
Office of the Public Defender
1336 Beltjen Road
Suite 202, Tunick Building
St. Thomas, VI 00802

Michael A. Rogers
Office of Federal Public Defender
4094 Diamond Ruby
Suite 5

2
Christiansted, VI 00820

Counsel for Appellant

SHWARTZ, Circuit Judge.

Defendant Wayne A. G. James appeals his conviction
for wire fraud and embezzlement. James challenges: (1) the
introduction of evidence outside the statute of limitations; (2)
the Government’s attempts to introduce evidence about
James’s eviction lawsuit; (3) the use of a demonstrative aid;
and (4) the substitution of an excused juror with an alternate
after the jury had been polled. Discerning no error, we will
affirm.

I

A

During the 2009 to 2010 term, James served as a senator
in the Virgin Islands Legislature. The Legislature maintained
a fund that James and other senators could use to pay for
Legislature-related expenses, such as the costs of running their
offices, supplies, or for legislative initiatives. Senators
sometimes received checks from the fund for such items.
James used a large portion of the checks issued to him for his
personal expenses.

James obtained these checks by presenting invoices
purportedly associated with work on a historical project.
Before becoming a senator, James took an interest in the 1878
Fireburn, a revolt on St. Croix. The Danish National Archives
(“the Archives”) possesses historical documents about the

3
event. In February 2008, James inquired about retrieving
documents from the Archives and received a cost estimate. For
a fee, which had to be pre-paid by wire transfer, the Archives
would gather and provide copies of documents to individuals
outside of Denmark. James hoped to use the records to
eventually produce a movie.

Over a year later, after James’s election to the
Legislature, he requested funds for his Fireburn research
project from the Legislature. From April 2009 through mid-
October 2010, James obtained several checks by submitting
false invoices for purported translation and research work for
the Fireburn project. Only a fraction of the funds James
received were used to pay for the Danish records and
translations. James used most of the funds for his personal
benefit, including for his re-election campaign.

Law enforcement investigated this conduct and, on
October 1, 2015, a grand jury returned an indictment charging
James with two counts of wire fraud in violation of 18 U.S.C.
§ 1343 and one count of federal program embezzlement in
violation of 18 U.S.C. § 666(a)(1)(A).

B

At trial, three evidentiary issues arose that are relevant
to this appeal. First, the District Court permitted the
Government to introduce evidence of acts outside the
limitations period, 18 U.S.C. § 3282(a).

Second, James moved to exclude evidence that he paid
a court-ordered $18,000 bond in an eviction dispute with his
landlord on the same day as he cashed one of the checks from

4
the Legislature. The District Court did not rule on this motion
before trial, but it instructed the Government not to discuss the
eviction case in its opening. Thereafter, the Government called
two witnesses to testify about the eviction-related payment,
Gerald Groner and Indira Chumney. Groner was an attorney
who had participated in the eviction litigation. James objected
to Groner’s testimony before any questioning took place. The
objection was sustained and Groner was excused. Chumney
was the branch operations manager for First Bank and was
questioned about a bank statement and deposit slip reflecting
James’s deposit of $18,000. James objected before she
testified about any other topic. The objection was sustained
and the witness was excused. Although neither witness
testified about the eviction case, James argued that the
Government’s attempts to introduce evidence about it
constituted prosecutorial misconduct and moved for a mistrial.
The Court denied the motion.

Third, the District Court permitted the use of a chart as
a demonstrative aid to accompany the case agent’s testimony.
The chart captured information from admitted exhibits,
including dates of check requests, amounts requested and paid,
and dates checks were cashed. James objected to the
Government’s effort to offer the chart into evidence under
Federal Rule of Evidence 1006. The Court took the objection
under advisement. The Court thereafter asked if James
objected to use of the chart as a demonstrative aid and James
replied “no objection.” App. 676. The Court thereafter
instructed the jury that it should consider the chart as a guide
for testimony, not as substantive evidence. The Government
used the chart during the case agent’s testimony to discuss the
transactions, but it was not admitted into evidence.

5
 C

When the jury determined they had completed their
deliberations, the foreperson announced a guilty verdict.
Before the District Court recorded the verdict, it polled the jury
and perceived a problem with Juror 8. After discussion with
counsel, the Court questioned Juror 8. The questioning
revealed Juror 8’s limited ability to speak and understand
English. The Court also noted concerns about Juror 8’s candor
and memory, and then it excused Juror 8. James consented to
the Court’s decision to excuse Juror 8, but he objected to
replacing the excused juror with an alternate. Despite James’s
objection, the Court replaced the excused juror with an
alternate. The Court then instructed the jury: (1) to “restart” its
deliberations “as though you are starting from scratch,” App.
913-14; (2) “there is no rush to reach a verdict;” App. 914; (3)
the verdict “must be considered and deliberate;” id.; and (4) the
new juror “should feel as though he is beginning anew, not . . .
interposing or becoming someone who is interrupting an
ongoing process,” id. The reconstituted jury retired to
deliberate anew and eventually announced a unanimous guilty
verdict.

James appeals.

II 1

James challenges: (1) the introduction of evidence
outside the statute of limitations; (2) the Government’s
attempts to introduce evidence of the payment in the eviction

1
The District Court had jurisdiction under 48 U.S.C. § 1612.
We have jurisdiction under 28 U.S.C. § 1291.

6
lawsuit; (3) the use of the chart during the case agent’s
testimony; and (4) the substitution of an excused juror with an
alternate after jury polling. We address each claim in turn.

A2

James argues that the District Court erred in permitting
the Government to introduce evidence of acts falling outside
the statute of limitations. 18 U.S.C. § 3282(a). “The general
statute of limitations is five years after the offense is
committed.” United States v. Schneider, 801 F.3d 186, 195 (3d
Cir. 2015) (citing 18 U.S.C. § 3282(a)). Because the
Indictment was filed in October 2015, James argues that
evidence of conduct that occurred before October 2010 is
inadmissible.

To prove wire fraud, the Government must show that
the defendant “willful[ly] participat[ed] in a scheme or artifice
to defraud,” with intent to defraud, and used a wire to further
that scheme. United States v. Andrews, 681 F.3d 509, 518 (3d
Cir. 2012). Wire fraud is not a continuing offense, United
States v. Siddons, 660 F.3d 699, 705 (3d Cir. 2011), but each
wire may further a single, ongoing scheme to defraud, see
Andrews, 681 F.3d at 518. Thus, “mailings [and wirings] that
fall outside the statute of limitations can be considered as
evidence to prove [a] fraud that [occurred] within the statute of

2
We review the District Court’s decision to allow or exclude
evidence for abuse of discretion. United States v. Starnes, 583
F.3d 196, 213-14 (3d Cir. 2009). “We will not disturb a trial
court’s exercise of discretion unless no reasonable person
would adopt the district court’s view.” Id. at 214 (alterations
and internal quotation marks omitted).

7
limitations.” United States v. Pharis, 298 F.3d 228, 234 n.3 (3d
Cir. 2002) (en banc), as amended (Sept. 30, 2002); see United
States v. Morelli, 169 F.3d 798, 806 n.9 (3d Cir. 1999) (“[T]he
wire fraud and mail fraud statutes differ only in form, not in
substance[.]”).

Because the jury may consider evidence outside the
limitations period that proves the existence of an artifice to
defraud, Pharis, 298 F.3d at 234, the District Court properly
permitted evidence predating October 2010. Such evidence,
including James’s submission of false invoices to the
Legislature to obtain funds for his own use, proved “the
existence of [his] overarching scheme to defraud, [which] is an
essential element of the wire fraud offenses.” App. 101-02.
More specifically, the Government introduced evidence of
fake invoices and check requests from 2009 and early 2010,
together with the fraudulent, non-time-barred October 2010
invoices, to show that James had an ongoing scheme to use the
Fireburn research as cover to obtain Virgin Island funds for his
personal use. The fact that James’s scheme began before
October 2010 does not make evidence about his scheme from
that period inadmissible, as it is relevant to prove an element
of a non-time-barred crime: the existence of a scheme to
defraud. Pharis, 298 F.3d at 234; see also Fitzgerald v.
Henderson, 251 F.3d 345, 365 (2d Cir. 2001) (“A statute of
limitations does not operate to bar the introduction of evidence
that predates the commencement of the limitations period but
that is relevant to events during the period.”). Thus, the Court
did not abuse its discretion in admitting evidence of activities
that occurred outside the statute of limitations. 3

3
Because evidence of James’s activity that occurred outside
the statute of limitations was offered to prove the charged

8
 B4

James also argues that the District Court erred in
refusing to grant a mistrial motion based on alleged
prosecutorial misconduct. According to James, the
Government attempted to introduce evidence of an eviction
matter that the Court had precluded.

A prosecutor’s comments constitute reversible error
only if they result in the denial of due process. See United
States v. Repak, 852 F.3d 230, 259 (3d Cir. 2017); United
States v. Lee, 612 F.3d 170, 194 (3d Cir. 2010). “The
Government may run afoul of the defendant’s due process right
to a fair trial by systematically injecting inadmissible . . .
evidence at trial, thereby permeat[ing] the proceedings with
prejudice.” United States v. Welshans, 892 F.3d 566, 574 (3d
Cir. 2018) (internal citations and quotation marks omitted).
We do not “lightly overturn[]” a conviction based on
prosecutorial misconduct. United States v. Young, 470 U.S. 1,
11 (1985). The “conduct must be viewed in context,” and

scheme to defraud, it was not Federal Rule of Evidence 404(b)
“other acts” evidence, so any objection on that basis is inapt.
United States v. Green, 617 F.3d 233, 248 (3d Cir. 2010) (“This
gives effect to Rule 404(b)’s applicability only to evidence of
other crimes, wrongs, or acts. If uncharged misconduct
directly proves the charged offense, it is not evidence of some
‘other’ crime.” (internal quotation marks and citation
omitted)).
4
We review the District Court’s ruling on a mistrial motion for
abuse of discretion. See United States v. Brennan, 326 F.3d
176, 182 (3d Cir. 2003).

9
“only by doing so can it be determined whether the
prosecutor’s conduct affected the fairness of the trial.” Id.

The Government’s efforts to introduce evidence from
an eviction lawsuit against James did not deprive him of due
process. The District Court repeatedly expressed to the
Government not to introduce evidence about the eviction case. 5
The Government nevertheless called two witnesses to testify to
facts related to that case to show James’s “motive to steal
taxpayer money.” App. 66, 115. James, however, suffered no
prejudice because the Court prevented the witnesses from
giving any testimony about the eviction case. The first witness
the Government called to testify about this subject, Gerald
Groner, was not permitted to testify about any subject. He took
the stand and, following a discussion between the Court and
counsel, was excused. When the second witness, Indira
Chumney, was summoned to discuss the eviction-related
payment, the Court repeated: “We are not going there.” App
611. Ms. Chumney testified about a bank statement reflecting
James’s $18,000 deposit, but was excused before the
documentation was admitted and before presenting any other
testimony, including testimony about what happened to the

5
The District Court made no pre-trial ruling, but it asked the
Government not to address the eviction lawsuit in its opening.
At the same time, the Court reserved whether the Government
could mention the evidence later in the trial. At the end of the
first day of trial, the District Court expressed Rule 403
concerns regarding the eviction lawsuit, but once again, it
made no ruling on the record. The Court re-expressed those
concerns the next morning. Although the Court did not provide
explicit ruling, its desire that the Government avoid
mentioning the eviction lawsuit was clear.

10
funds. As a result, the Government’s efforts regarding the
eviction lawsuit did not result in the introduction of
inadmissible evidence. James suffered no prejudice and thus
there was no misconduct that requires us to disturb the verdict.
Accordingly, the Court did not abuse its discretion in refusing
to grant a mistrial.

C

We next address James’s argument that the District
Court erred in permitting the use of a chart summarizing the
evidence of his funding requests. James asserts that the chart
was inadmissible under Federal Rule of Evidence 1006. The
problem with James’s argument is two-fold. First, the chart
was not admitted into evidence under Rule 1006. Rather, it
was used as a demonstrative aid. 6 This is hardly a subtle

6
Under Federal Rule of Evidence 611, a district court has the
discretion to determine the manner and method of testimony
during trial. “[T]he use of demonstrative evidence,” such as
charts, with proper limiting instructions, is one means to
control testimony, United States v. Velasquez, 304 F.3d 237,
240 (3d Cir. 2002), and allows the court to “avoid [the]
needless consumption of time,” Fed. R. Evid. 611(a) &
advisory committee’s note; see also Abrams v. Lightolier Inc.,
50 F.3d 1204, 1217 (3d Cir. 1995); United States v. Possick,
849 F.2d 332, 339 (8th Cir. 1988) (use of demonstrative charts
“to aid the jury’s comprehension is well within the court’s
discretion”); United States v. Gardner, 611 F.2d 770, 776 (9th
Cir. 1980) (permitting use of chart summarizing assets,
liabilities and expenditures in a tax case under Rule 611(a)
because it contributed to clarity of presentation to jury and was
reasonable method of presenting evidence).

11
evidentiary distinction. Second, when James was asked if he
objected to the use of the chart as a demonstrative aid, he
replied “no objection.” App. 676. The record shows that
James’s no-objection response was an “intentional
relinquishment or abandonment of a known right,” in this case,
to lodge an objection to a piece of evidence, and thus
constitutes a waiver. United States v. Olano, 507 U.S. 725, 733
(1993). For example, James was not blindsided because the
Government allowed him to review the chart in advance. In
addition, when the Government asked to display the chart in “a
large format” throughout trial, James again said that he was
fine with this request. App. 676-77. Moreover, when the
Government tried to use another chart as a demonstrative aide,
James objected. The District Court then barred the use of the
second chart. These and other portions of the record show that
James’s no-objection statement was knowing and intentional.
See Virgin Islands v. Rosa, 399 F.3d 283, 291-93 (3d Cir.
2005) (considering the record to determine whether a failure to
object is a knowing waiver).

When a right or rule is waived, “an appeal based on a
non-adherence to the legal principle is precluded.” Virgin
Islands v. Rosa, 399 F.3d 283, 290 (3d Cir. 2005). 7 The rule

7
A right may also be forfeited. A forfeiture occurs when a
party fails to make a timely assertion of the right. Olano, 503
U.S. at 733. If the right was forfeited, Federal Rule of Criminal
Procedure 52(b) provides a basis for review. Rosa, 399 F.3d
at 290. Thus, if the defendant did not waive, the alleged error
may be reviewed for “plain error,” despite the absence of a
timely objection. Olano, 503 U.S. at 733-34. In short, “where
there was forfeiture, we apply plain error analysis; where there

12
that federal courts do not consider waived arguments is
premised on the adversarial nature of our system of justice: that
litigants, not the courts, choose the facts and arguments to
present. Greenlaw v. United States, 554 U.S. 237, 244 (2008);
Arizona v. California, 530 U.S. 392, 413 (2000) (observing
that the principle of party presentation [is] basic to our system
of justice). Thus, when a party clearly chooses a particular
path, it will be respected and generally not further reviewed.
Not only does this approach respect the adversarial system, in
which the parties choose their arguments, but it also promotes
finality. It encourages parties to present all relevant arguments
to the trial court and binds them to their strategic choices. See
Barna v. Bd. of Sch. Directors of Panther Valley Sch. Dist.,
877 F.3d 136, 146 (3d Cir. 2017) (citing Fleishman v. Cont’l
Cas. Co., 695 F.3d 598, 608 (7th Cir. 2012)). In addition, such
preservation rules protect litigants from unfair surprise. Id.
(citing Webb v. City of Philadelphia, 562 F.3d 256, 263 (3d
Cir. 2009)); Holly Hill Farm Corp. v. United States, 447 F.3d
258, 267 (4th Cir. 2006). Finally, the rules promote judicial
efficiency and prevent disturbing rulings based on grounds
never argued to the district court. Caisson Corp. v. Ingersoll-
Rand Co., 622 F.2d 672, 680 (3d Cir. 1980); see also Wood v.
Milyard, 566 U.S. 463, 473 (2012) (reminding appellate courts
“not to overlook” the “process and time investment” of the trial
courts.).

To advance these goals, when a party has intentionally
relinquished a right, he or she may not seek review of any
alleged error flowing from such a waiver “absent exceptional
circumstances.” United States v. Rose, 538 F.3d 175, 179 (3d

was waiver, we do not.” Rosa, 399 F.3d at 290-91 (quoting
United States v. Mitchell, 85 F.3d 800, 807 (1st Cir. 1996)).

13
Cir. 2008). Put differently, the claimed error “is not
susceptible to review.” Id.; see also Olano, 507 U.S. at 733
(“mere forfeiture, as opposed of waiver, does not extinguish an
‘error’ under Rule 52(b)”). In short, when there is a waiver,
we conduct no further analysis of the claimed error. Rosa, 399
F.3d at 290-91. Based on this record, James’s affirmative no-
objection statement to the chart’s demonstrative use and his
failure to dispute waiver on appeal, we conclude that he has
waived any basis to seek review of that ruling. 8

8
Because the District Court allowed the chart only as a
demonstrative aid and did not admit it into evidence under
Federal Rule of Evidence 1006, we need not address James’s
argument that the chart was an improper summary under Rule
1006.
James also argued that the case agent who testified
using the demonstrative aid offered inadmissible opinion
testimony. James identifies no examples of this allegedly
impermissible testimony. As a result, he has waived this issue
on appeal. See, e.g., Fed. R. App. P. 28(a)(8) (to be preserved,
the arguments must be supported specifically by “the reasons
for them, with citations to the authorities and parts of the record
on which the appellant relies”); Vente v. Gonzales, 415 F.3d
296, 299 n.3 (3d Cir. 2005); John Wyeth & Bro. Ltd. v. CIGNA
Int’l Corp., 119 F.3d 1070, 1076 n.6 (3d Cir. 1997) (holding
that an argument is waived when raised only “in passing (such
as, in a footnote)” without “squarely argu[ing]” it); see also In
re Application of Adan, 437 F.3d 381, 390 n.4 (3d Cir. 2006)
(concluding that to preserve an issue, the party must “present
substantive argument in support of [the] claim,” (internal
quotation marks omitted)). In any event, the absence of any
examples is not surprising given that the witness provided no

14
 D9

opinions, but rather testified about only what he saw in the
documents he reviewed.
James’s opening brief also mentions another chart,
identified as Exhibit 30. Exhibit 30 was not admitted into
evidence or used as a demonstrative aid. The opening brief
also makes reference to impermissible use of a summary chart
by a forensic accountant, but James makes only passing
reference to it and does not develop this argument. Such a
passing reference does not preserve the issue for appeal.
CIGNA Int’l, 119 F.3d at 1076 n.6.
James failed to preserve another argument. James’s
reply brief mentions for the first time that the forensic
accountant relied on information outside the statute of
limitations. “[W]here an issue is raised for the first time in a
reply brief, we deem it insufficiently preserved for review
before this [C]ourt.” Garza v. Citigroup Inc., 881 F.3d 277,
284-85 (3d Cir. 2018) (citation omitted); In re Surrick, 338
F.3d 224, 237 (3d Cir. 2003); Lunderstadt v. Colafella, 885
F.2d 66, 78 (3d Cir. 1989)). Therefore, James failed to
preserve any argument about time-barred material underlying
the forensic accountant’s testimony. Even if preserved,
evidence of activity that predates the statute of limitations is
relevant to proving the existence of the scheme to defraud,
Pharis, 298 F.3d at 234, and, therefore, the accountant’s
testimony was proper.
9
“[A] trial judge is in the best position to weigh the
circumstances peculiar to each trial.” United States v. Fiorilla,
850 F.2d 172, 176 (3d Cir. 1988). As a result, “we review the
district court’s order denying a mistrial,” id. at 174, and its
decisions regarding jury polling and dismissing a juror for
cause for abuse of discretion. See e.g., United States v. Fattah,

15
 James argues that the District Court abused its
discretion when it declined to declare a mistrial after the jury
poll revealed that a juror lacked the capacity to deliberate and
when it substituted a juror with an alternate.

“[D]ecisions related to juror substitution are within the
discretion of the trial court.” United States v. Penn, 870 F.3d
164, 171 (3d Cir. 2017), cert. denied, 138 S. Ct. 700 (2018).
District courts have “wide latitude in making the kind of
credibility determinations underlying the removal of a juror,”
United States v. Thornton, 1 F.3d 149, 154 (3d Cir. 1993),
because their “unique perspective at the scene . . . [places them]
in a far superior position” to determine the proper course of
action when issues of juror disqualification arise, United States
v. Boone, 458 F.3d 321, 329 (3d Cir. 2006).

The Federal Rules of Criminal Procedure “currently . . .
provide courts three options after excusing a juror for good
cause during deliberations: (1) declare a mistrial; (2) proceed
with [eleven] jurors; or (3) seat an alternate.” United States v.
Brown, 784 F.3d 1301, 1304 (9th Cir. 2015). These three

914 F.3d 112, 149-151 (3d Cir. 2019) (“We review the
dismissal of a juror for cause for abuse of discretion . . . .We
will reverse only if the decision to dismiss a juror was without
factual support, or for a legally irrelevant reason.” (internal
citations and quotation marks omitted)); United States v.
Wrensford, 866 F.3d 76, 89 (3d Cir. 2017) (“We review a
district court’s actions concerning jury polling for abuse of
discretion” (citing Virgin Islands v. Hercules, 875 F.2d 414,
417 (3d Cir. 1989)).

16
options come from three rules: Rule 31, Rule 23, and Rule 24.10
Rule 31(d) gives the defendant the right (and the district court
the option) to poll the jury after it returns a verdict. Fed. R.
Crim. P. 31(d). The purpose of jury polling is to provide “each
juror an opportunity, before the verdict is recorded, to declare
in open court his assent to the verdict which the foreman has
returned and thus to enable the court and the parties to ascertain
with certainty that a unanimous verdict has in fact been reached
and that no juror has been coerced or induced to agree to a
verdict to which he has not fully assented.” Hercules, 875 F.2d
at 418 (citations and emphasis omitted). Where the poll
demonstrates a lack of unanimity, Rule 31(d) leaves to the
district court’s discretion whether the jury should be directed
to redeliberate or whether a mistrial is warranted. Fed. R.
Crim. P. 31(d). Rule 23(b)(3) permits the court, at its
discretion, to excuse a juror for good cause and allow a jury of
eleven to return a verdict. Fed. R. Crim. P. 23(b)(3). Finally,
under Rule 24(c), the court may replace a juror with an
alternate where juror misconduct or incapacity arises, in which
case the court must instruct the jury to begin anew with the
alternate’s addition. Fed. R. Crim. P. 24(c). Here, the Court
polled the jury, identified good cause to excuse a juror, and
excused the juror under Rule 23. The Court then replaced the
juror with an alternate and gave instructions for the jury to
begin deliberation anew consistent with Rule 24.

The District Court did not abuse its discretion in
choosing to seat an alternate and in denying James’s request

10
We address the rules in the sequence in which the events
each rule addresses arose before the District Court.

17
for a mistrial. Before the Court accepted the verdict, 11 it polled
the jury and perceived a problem with Juror 8. The parties
consented to further questioning of the juror after some debate.
As a result of its observations and inquiry, the Court had
concerns about the juror’s candor, memory, and English
language proficiency, which reflected that it questioned
whether Juror 8 understood the verdict as read by the
foreperson. Faced with these concerns about the juror, the
Court acted within its discretion to excuse Juror 8. 12

11
A verdict is not final until is accepted by the Court. See, e.g.,
Hercules, 875 F.2d at 417 (“[A] jury cannot be said to have
reached a valid verdict until the result is announced in open
court and no dissent is registered by any juror.”); see also
Harrison v. Gillespie, 640 F.3d 888, 899 (9th Cir. 2011)
(“Because of the significance of the entire deliberative process,
the jurors’ preliminary votes in the jury room do not constitute
a final verdict, even if they are unanimous . . . . Instead,
the verdict must be rendered by the jury in open court
and accepted by the court in order to become final. The court
may also reject the jury’s verdict if it is inconsistent or
ambiguous.”); United States v. Chinchic, 655 F.2d 547, 550
(4th Cir. 1981) (“[A]ny member of [the jury] is entitled to
change his or her mind up until the time of the trial court’s
acceptance of the verdict.”); United States v. Love, 597 F.2d
81, 84 (6th Cir. 1979) (“[T]he very existence of Rule
31(d) which provides for polling a jury after its verdict has
been returned but before it is recorded compels the conclusion
that a verdict is not final when announced.”).
12
During jury selection, the District Court instructed the venire
that prospective jurors who answer “yes” to any voir dire
question should raise their juror cards. Those jurors who raised
their cards were questioned further. Because it seems that

18
 James consented to the Court’s decision to excuse Juror
8, but he objected to replacing the excused juror with an
alternate. The Court replaced the excused juror with an
alternate, over James’s objection. The Court told the jury to
“restart” its deliberations, reminded the jury that “there is no
rush to reach a verdict,” and that the verdict “must be
considered and deliberate.” App. 913-14. The Court also
instructed that the new juror “should feel as though he is
beginning anew, not . . . interposing or becoming someone who
is interrupting an ongoing process.” App. 914. The Court’s
decisions to excuse Juror 8, replace her with an alternate, and
give instructions to the newly constituted jury all complied
with Rules 23, 24, and 31 and were within its broad discretion.
United States v. Wrensford, 866 F.3d 76, 89 (3d Cir. 2017)
(“Our Court has adopted a rule vesting discretion in the trial
court because a trial judge is in the best position to weigh the
circumstances peculiar to each trial.” (quoting United States v.
Fiorilla, 850 F.2d 172, 176 (3d Cir. 1988) (internal quotation
marks omitted))).

Taking Rules 23, 24, and 31 together, the District Court
has the discretion to select among three options under the
Federal Rules of Criminal Procedure, including seating an
alternate and directing the jury to begin deliberations anew
when it had good reason to think that a juror lacked the capacity
to deliberate. Moreover, there is nothing in the record to
suggest the decision to seat an alternate prejudiced James in

Juror 8 did not raise her card and was not subject to any
individual questioning, there was no occasion during jury
selection for the Court or the parties to learn of Juror 8’s
language difficulties.

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any way. Thus, the District Court did not abuse its discretion
in replacing Juror 8 with an alternate and instructing the jury
to begin again. 13

James also asserts that the juror substitution violated his
Fifth Amendment right to due process and his Sixth
Amendment right to an impartial jury trial. “[F]ederal courts
have generally ruled that the substitution of a juror after
deliberations have begun does not violate the United States
Constitution, provided that defendants suffered no prejudice as
a result.” Claudio v. Snyder, 68 F.3d 1573, 1576 (3d Cir.
1995), amended (Dec. 1, 1995). Because all deliberating
jurors heard all of the evidence and were properly instructed, 14
and there is nothing in the record suggesting that the
deliberating jurors lacked impartiality or the competence to
understand the evidence and the instructions, or that the
excused juror tainted or otherwise impaired the reconstituted
jury that delivered the verdict, the Court’s substitution of Juror
8 with an alternate neither prejudiced James nor violated his
Fifth Amendment due process right or Sixth Amendment right
to an impartial jury.

III

For the foregoing reasons, we will affirm.

13
James also argues that the District Court should have
interrogated two jurors whom Juror 8 identified as being
Spanish-speakers like her. The Court acted within its
discretion to deny this request as there was no evidence to
suggest these jurors had any language difficulties.
14
We presume that the jury follows their instructions.
Richardson v. Marsh, 481 U.S. 200, 211 (1987).

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