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Opinion of the Court
agree to, it's not worth your spending time hassling about, you know what I mean? You've got too much else on your mind. I don't want it to be a big issue; it's just a suggestion. Think about it and let me know." App. 79.
The matter arose again the next day, in an ambiguous exchange between Gray's counsel and the District Court:
"THE COURT: [H]ave you given any more thought as to whether you want the alternates to go in and not participate, or do you want them out?
"MR. ROBISON [counsel for Gray]: We would ask they not.
"THE COURT: Not." App. 82.
One day later, on May 28, the last day of trial, the District Court for a third time asked the defendants whether they wanted the alternate jurors to retire into the jury room. Counsel for defendant Davy Hilling gave an unequivocal, affirmative answer.
"THE COURT: Well, Counsel, I received your alternates. Do I understand that the defendants now—it's hard to keep up with you, Counsel. It's sort of a day by day—but that's all right. You do all agree that all fourteen deliberate?
"Okay. Do you want me to instruct the two alternates not to participate in deliberation?
"MR. KELLOGG [counsel for Hilling]: That's what I was on my feet to say. It's my understanding that the conversation was the two alternates go back there instructed that they are not to take part in any fashion in the deliberations." App. 86.
This discussion, like the preceding two, took place outside the hearing of the jurors. As before, both Gray's counsel and Olano's counsel were present. Gray, too, attended all three discussions. Olano may not have attended the third—
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