Cite as: 507 U. S. 725 (1993)
Opinion of the Court
he claims that the Marshal failed to return him to the courtroom in time—but he was present at the first two.
The District Court concluded that Hilling's counsel was speaking for the other defendants as well as his own client. None of the other counsel intervened during the colloquy between the District Court and Hilling's counsel on May 28, nor did anyone object later the same day when the court instructed the jurors that the two alternates would be permitted to attend deliberations. The court instructed:
"We have indicated to you that the parties would be selecting alternates at this time. I am going to inform you who those alternates are, but before I do, let me tell you, I think it was a difficult selection for all concerned, and since the law requires that there be a jury of twelve, it is only going to be a jury of twelve. But what we would like to do in this case is have all of you go back so that even the alternates can be there for the deliberations, but according to the law, the alternates must not participate in the deliberations. It's going to be hard, but if you are an alternate, we think you should be there because things do happen in the course of lengthy jury deliberations, and if you need to step in, we want you to be able to step in having heard the deliberations. But we are going to ask that you not participate.
"The alternates are Norman Sargent and Shirley Kinsella. I am going to ask at this time now, ladies and gentlemen, that you retire to the jury room and begin your deliberations." App. 89-90.
During deliberations, one of the alternate jurors was excused at his request. The other alternate remained until the jury returned with its verdict.
Both respondents were convicted on a number of charges. They appealed to the United States Court of Appeals for the Ninth Circuit. 934 F. 2d 1425 (1991). The Court of Appeals reversed certain counts for insufficient evidence and then
729
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