507 U.S. 725 (1993)
In 1986, Guy W. Olano, Jr., and Raymond M. Gray were indicted in the Western District of Washington on multiple federal charges for their participation in a loan kickback scheme while serving on the board of a savings and loan association.1 Their joint jury trial with five codefendants commenced in March 1987.2 All parties agreed that fourteen jurors would be selected, with the two alternates identified before deliberations began.3
On May 26, 1987, shortly before the end of the three-month trial, the district court suggested allowing the two alternate jurors to attend deliberations without participating.4 The court raised the matter again the next day in an exchange with Gray's counsel.5 On May 28, the final day of trial, counsel for defendant Davy Hilling gave an affirmative response that all fourteen could deliberate, with instructions that the alternates not participate; Olano's and Gray's counsel were present and did not object.6
The district court instructed the jurors that the alternates would attend deliberations but must not participate.7 One alternate was excused during deliberations at his own request, while the other remained until the jury returned its verdict. Both Olano and Gray were convicted.8
Olano and Gray appealed to the United States Court of Appeals for the Ninth Circuit.9 The Ninth Circuit reversed certain counts for insufficient evidence and then considered the presence of alternate jurors during deliberations under Federal Rule of Criminal Procedure 24(c).10 Because no objection had been made at trial, the court applied a plain error standard, held that the violation was inherently prejudicial, and reversed the remaining convictions.11
The Supreme Court granted certiorari to clarify the standard for plain error review by the courts of appeals under Rule 52(b).12
Whether the presence of alternate jurors during jury deliberations was a plain error that the Court of Appeals was authorized to correct under Federal Rule of Criminal Procedure 52(b)?13
Federal Rule of Criminal Procedure 52(b) provides that plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.14 To correct a forfeited error under the rule there must be an error that is plain and that affects substantial rights.15 Moreover the court of appeals should not exercise its discretion to correct the error unless the error seriously affects the fairness integrity or public reputation of judicial proceedings.16
No. Although the presence of the alternate jurors during deliberations deviated from the command of Rule 24(c) that alternates be discharged after the jury retires. This deviation may be assumed to constitute plain error. Nevertheless the error did not affect substantial rights.17
In the established facts Olano and Gray made no specific showing that the alternates participated in deliberations or chilled the regular jurors. The district court specifically instructed the alternates not to participate. Jurors are presumed to follow such instructions. This appears in the facts where the court gave the instruction on May 28. The alternates were present but one was excused and the other remained without evidence of influence. Nor is prejudice presumed because the alternates were indistinguishable until identified and the instruction was given.1819
The Court of Appeals therefore lacked authority under Rule 52(b) to correct the error and reverse the convictions.20
Related opinions on this issue
Justice Kennedy joined the Court's opinion but emphasized that burden of proof concepts are the normal mode of analysis under Rule 52.21 He noted that Rule 24(c) is the product of a judgment that the jury system should have a stable structure that cannot be varied by a court even with consent of the parties.22 He observed that if a specific objection had been made and overruled the systemic costs would be significant because it would be difficult for the Government to show absence of prejudice under Rule 52(a).23
However the operation of Rule 52(b) does not permit a party to withhold an objection and then demand automatic reversal.24
Joined by Justice White And Justice Blackmun
Justice Stevens joined by Justices White and Blackmun dissented.25 He argued that the violation of Rule 24(c) implicated substantial rights because defects bearing on the jury's deliberative function are subject to reversal regardless of prejudice as they undermine the structural integrity of the criminal tribunal.26 He contended that reading substantial rights the same in Rule 52(a) and (b) does not eliminate the difference between forfeited and nonforfeited errors with the latter being subject to discretionary correction.27
He concluded that the Court of Appeals did not abuse its discretion in reversing as it is better positioned to evaluate the need for firm enforcement of the procedural rule.28