United States v. Sundaram

60 F. App'x 153

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 13, 2003
• Docket: No. 02-10164; D.C. No. CR-01-00262-VRW
• Status: Published

Opinion

MEMORANDUM

*

We affirm defendant Chandramoorthy Sundaram’s conviction on one count of bringing or attempting to bring an alien into the United States in violation of 8 U.S.C. § 1324(a)(2)(B)(ii). Although the initial deliberations that included two alternate jurors violated Fed.R.Crim.P. 24(c)(3), the district court’s removal of the alternates and subsequent instruction for the jury “to begin its deliberations anew” was sufficient to prevent any prejudice to Sundaram.¹ See United States v. McFarland, 34 F.3d 1508, 1514 (9th Cir.1994); United States v. Acevedo, 141 F.3d 1421, 1424-25 (11th Cir.1998).

It would have been better had the district court elaborated on its direction to “begin ... anew,” and instructed the jurors to disregard entirely any deliberations taking place prior to the removal of the alternates and to consider the evidence as if the previous deliberations had never occurred. We conclude, however, that the instruction given did not amount to plain error. The post-verdict poll indicated that the jury’s verdict was unaffected by the alternates’ deliberation, and there was no evidence of prejudice in the record.

We also find no merit in Sundaram’s other arguments on appeal. First, Sundaram waived his right to attack the indictment as duplicitous by objecting to an instruction proposed by the district court that would have cleared up any ambiguity in the indictment’s language. See Sovak v. Chugai Pharm. Co., 280 F.3d 1266, 1270 (9th Cir.2002) (holding that one may not allege errors on appeal for which he or she is responsible). Second, probable cause for an arrest was established by the facts that Sundaram was a suspected alien smuggler, that his name, along with the names of his traveling companions, had been used before by undocumented nationals seeking to enter the United States illegally, and that the individual Sundaram accompanied was unable to present any identification documents.² Finally, Sundaram’s asserted inability to understand English did not render invalid his waiver of Miranda rights. The record makes clear that Sundaram adequately understood the officer’s recitation of his rights and that he chose to proceed in English rather than waiting for an interpreter.³

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir. R. 36-3.

1 . Because there was no objection at the time, we review for plain error the district court’s inadvertent decision to send the alternates in to deliberate with the jurors. United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

2 . We review de novo the district court’s finding that probable cause exists. United States v. Buckner, 179 F.3d 834, 837 (9th Cir.1999).

3 . We review for clear error the district court’s finding that Sundaram waived his Miranda rights. See United States v. Garibay, 143 F.3d 534, 536 (9th Cir.1998).