with whom TRASK, Circuit Judge, concurs (dissenting):

With due respect to the views of the majority, I must dissent.

I.

Some additional facts may be helpful in understanding the situation with which the trial court was confronted. In this prosecution for armed bank robbery, the government’s case consisted of three eyewitnesses who identified Lamb as the robber and a confession by him to the commission of the offense. The defense consisted of an attempt to raise doubts as to the reliability of the eyewitnesses’ identification and the authenticity of the confession. Lamb did not testify.

The jury was duly instructed and the alternate juror was directed to stand ready to be summoned and was charged not to discuss the case meanwhile with any person. The court asked both counsel: “Is the charge satisfactory, gentlemen?” Both responded affirmatively. 1 *1158 Thereafter, at 4:09 P.M., the jury retired to deliberate.

The jury recessed at 5:00 P.M. of the same day, and reconvened at 9:30 A.M. the following morning. Between 11:04 A.M. and 11:25 A.M. the trial judge, at the jury’s request, reread his instructions. The jury recessed at 11:50 A.M. for the noon meal. .

During noon recess the judge received the note from one of the original jurors, as described by the majority. He then telephoned the alternate juror and instructed her to return to court. Shortly thereafter, however, the judge learned that the jury had reached its verdict. He therefore called the alternate again.

After determining that the verdict was improper, and acceding to defense counsel’s suggestion that the original juror with the emotional difficulties not be allowed to continue, the judge concluded:

The elapsed time between the notification of the alternate juror not to come back to court, and the subsequent notification to the contrary, was no more than two hours.

The court reread the instructions and admonished the newly constituted jury to begin its deliberations anew. In addition, ' the court, at the prompting of government counsel, made appropriate and significant inquiries after the final verdict was returned. It asked whether the jury had begun deliberations and discussed all points of evidence. The foreman and Mrs. Del Toro both responded affirmatively. The defendant does not argue that this was incorrect or that the jury did not duly follow the court’s instructions and admonitions.

II.

The majority recites a number of factors supporting its decision to reverse. It is unclear to me which, if any, of those factors actually bear on the majority’s disposition.

The majority asserts that “impermissible coercion . . . would seem apparent” in that the new jury deliberated only 29 minutes, while the old jury needed nearly four hours. The very language employed demonstrates the majority’s lack of conviction. Indeed, by its footnote 7 the majority recognizes the speculativeness of this contention, stating that the “twenty-nine minutes . is not a factor contributing to our conclusion.” This is understandable.

*1159 The original jury asked that the instructions be reread and did not deliberate anew until approximately 11:30 A.M., and deliberated again from 1:10 P.M. until 2:13 P.M. It “would seem apparent,” then, that serious deliberation time comprised approximately 83 minutes. The difference between 83 and 29 hardly compels a finding of “impermissible coercion.”

The majority cites no authority to support its suggestion that the shortness of time in reaching a verdict indicates prejudice. The cases are all to the contrary. See generally annotation, 91 A.L.R.2d 1238 (1963). The Sixth Circuit suggests, for example:

United States v. Young, 301 F.2d 298, 299 (6th Cir. 1962).

There is certainly nothing unusual in having a jury reach a verdict in 29 minutes when the facts are clearly presented and the evidence is as overwhelming as was the case here. It is pure speculation to suggest that impermissible coercion was exercised over Mrs. Del Toro.

The majority also asserts as a reason for its rule the likelihood that a recalcitrant juror would “feign illness or other incapacity so as to place the burden of decision on an alternate juror.” Yet in this case the withdrawing juror had already decided defendant was guilty, and only thereafter asked to be relieved. She was hardly coerced into feigning illness.

The majority also presents as a supportive factor the

I suggest that the “realistic effect” upon the alternate juror of these confusing telephone calls was absolutely nil. I cannot agree that any of these events served to relieve Mrs. Del Toro, the alternate juror, of any of her obligations, including that of confidentiality. Defendant makes no contention that she discussed the case with outsiders, disregarded the court’s admonitions or brought any outside influence into the jury room. There is not one scintilla of evidence suggesting that she did any of these things. On these facts, we might just as well assume that one or more of the original eleven jurors disregarded the judicial admonitions during the previous evening, as that Mrs. Del Toro did so during the period in question.

The only remaining factor bearing on the majority’s disposition is the fact that the original jury returned a guilty verdict before the alternate was seated. While concededly this fact suggests the possibility of influence, it is not enough standing alone to justify a rule of reversal per se.

III.

Even if one concludes that Rule 24(c) was not here waived by stipulation (see discussion below to the effect that it was), it is still necessary to determine whether violation of the rule was prejudicial to the defendant. In each of the two cases relied upon by the majority, the appellate courts after finding error, called for findings below of the possibility of prejudice. In each case, the district court on remand found no prejudice and the decision was affirmed on subsequent appeal. United States v. Allison, 481 F.2d 468, 472 (5th Cir. 1973), subsequent appeal, 487 F.2d 339 (5th Cir. 1973), cert. denied, 416 U.S. 982 , 94 S.Ct. 2383 , 40 L.Ed.2d 759 (1974); United States v. Hayutin, 398 F.2d 944, 950-51 (2d Cir.), cert. denied, 393 U.S. 961 , 89 S.Ct. 400 , 21 L.Ed.2d 374 (1968), subsequent appeal sub nom., United States v. Nash, 414 F.2d 234 (2d Cir.), cert. denied, *1160 396 U.S. 940 , 90 S.Ct. 375 , 24 L.Ed.2d 242 (1969). 2

In its footnote 3 the majority seeks to distinguish Allison and Hayutin with the suggestion that “defendants in both cases received the careful deliberation of the original twelve-member juries, free of any participation by the alternates.” However, the presence of an alternate juror in the jury room, as in Allison, “destroys the sanctity of the jury.” United States v. Beasley, 464 F.2d 468, 470 (10th Cir. 1972). The mere presence of the alternate may well have an effect on the deliberations of the twelve. United States v. Virginia Erection Corp., 335 F.2d 868, 872 (4th Cir. 1964).

When an alternate is present in the jury room, thereby violating the privacy of jury deliberations, a problem of constitutional dimension arises. There is thus greater justification for a rule of reversal per se where an alternate is present during deliberations (see Beasley, supra; Virginia Erection, supra) than where an alternate is substituted after deliberations have commenced. See Leser v. United States, 358 F.2d 313, 318 (9th Cir.), petition for cert. dismissed, 385 U.S. 802 , 87 S.Ct. 10 , 17 L.Ed.2d 49 (1966).

Significantly, the proposed Rule 24(c) (footnote 7 infra ) expressly prohibits attendance by alternates during deliberation, but would nevertheless allow substitution as the need arose.

The majority relies upon the “dramatic changes of circumstances” as justifying its rule of reversal per se. I suggest if the facts were the same, except that the original jury deliberated 29 minutes, and the new jury four hours, the per se rule would be of doubtful applicability. Therefore, despite the ambiguity of the majority opinion, 3 it most likely holds that on the particular facts before it reversal per se is required. Such a holding, of course, presumes juror misconduct in this case.

Rather than to presume misconduct, as would the majority, our role more appropriately is to presume that the jury has complied with the court’s instructions and admonitions, absent evidence to the contrary. Gray v. Shell Oil Co., 469 F.2d 742, 752 (9th Cir. 1972), citing, Vitello v. United States, 425 F.2d 416, 422-23 (9th Cir. 1970); Silverthorne v. United States, 400 F.2d 627, 641 (9th Cir. 1968), subsequent appeal, 430 F.2d 675 (9th Cir. 1970), cert. denied, 400 U.S. 1022 , 91 S.Ct. 585 , 27 L.Ed.2d 633 (1971); United States v. Baca, 494 F.2d 424, 429 (10th Cir. 1974).

Moreover, the trial court specifically inquired of the newly constituted jury as to the possibility of misconduct, and was satisfied that there was none. We should be loath to overturn this determination. See, e. g., United States v. Manning, 509 F.2d 1230, 1233 (9th Cir. 1974). The majority here overturns sub silentio the trial court’s finding.

If the majority opinion is read as requiring reversal per se each time Rule 24(c) is violated, regardless of circumstances, yet another problem arises. In Leser , we held that an express waiver of Rule 24(c) is “effective and binding upon appellants.” 358 F.2d at 317 . The majority herein does not overrule Leser , but merely distinguishes it. Future litigants reading together this case and Leser must conclude that without an express waiver prejudice is conclusively presumed, but with such a waiver there is a conclusive presumption of lack of prejudice. 4

*1161 This approach involving opposite conclusive presumptions is awkward at best. The central issue in these cases is whether the violation of Rule 24(c) is prejudicial to the defendant. See Allison and Hayutin, supra. Because of the myriad factual possibilities in which a Rule 24(c) violation may arise it is most difficult to determine from case to case whether actual, or even apparent, prejudice is present. Yet if the majority disposition is read as a rule of reversal per se regardless of circumstances, our exclusive focus in the future will be on the specificity of the waiver, without regard to apparent or actual prejudice or lack thereof. The inappropriateness of this approach is made clear by comparing Part IV of this dissent with the majority opinion (text following footnote 6).

I would adopt the approach of the courts in Allison and Hayutin , calling for a remand for an evidentiary hearing on the possibility of prejudice. However, in the case before us a remand would be fruitless, since the district court has already engaged in the necessary factfind-ing on the issue of possible prejudice.

IV.

Appellant concedes this court has held that Rule 24(c) can be waived in some circumstances. In Leser , we held that it was not reversible error to substitute an alternate for a juror who had become ill during deliberations, where counsel had stipulated to the procedure in the presence of and with the implied consent of the defendant. Appellant asserts that in this case, unlike Leser , there was no consent by defense counsel nor any acquiescence by defendant in the substitution of the alternate juror.

Yet both counsel had explicitly accepted the court’s earlier admonition to the alternate juror, and had failed to object to the court’s action in keeping her on call. The question “Is the charge satisfactory, gentlemen?” (see note 1 above) must have referred to the admonition given to Mrs. Del Toro immediately before the court’s inquiry of counsel. 5 This court has regularly referred to admonitions such as that given to Mrs. Del Toro as “instructions.” E. g., Silverthorne v. United States, supra, 400 F.2d at 643 ; Hilliard v. Arizona, 362 F.2d 908, 909 (9th Cir. 1966). Compare ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Trial by Jury § 4.6(d) at p. 117 (1968). The word “charge” is of course normally equated with the word “instruction.” See Black’s Law Dictionary 294 (1957). One commentator refers to “the stock charge that jurors are not to discuss the case with anyone . . . .” 8 J. Moore, Federal Practice ¶ 30.02 at p. 30-3 (2d ed. 1975) (emphasis added). That defense counsel approved of the admonition or charge is further indicated by his response to the court’s later statement (see note 1 above):

Of equal importance, defense counsel failed to object to the charge given to Mrs. Del Toro. Fed.R.Crim.P. 30 states:

(While Rule 30 may apply only to instructions to the jury on the law, Rule 51 has approximately the same effect as to other matters raised at trial. See 8 J. Moore, supra, ¶ 51.02.)

The only significant exception to this rule is the “plain error” doctrine. Fed.R. *1162 Crim.P. 52(b). See Singer v. United States, 380 U.S. 24, 38 , 85 S.Ct. 783 , 13 L.Ed.2d 630 (1965). Since Rule 24(c) can be waived, Leser, supra, defense counsel’s failure to demand enforcement of its provisions by objecting to the court’s admonitions is hardly “plain error.” See generally 8 J. Moore, supra, ¶ 30.04 at pp. 30-9 to 30-11; 8A id. ¶ 51.02.

It is unrealistic to assume that defense counsel approved the admonition, and therefore by strong implication agreed to the alternate standby scheme, but did not thereby waive the “mandatory” second prong of Rule 24(c), which requires discharge of all alternate jurors not installed at the time the jury retires. It is no great leap for me to conclude, as did the district court, that defense counsel and the court contemplated the substitution of the alternate if, as was eventually the case, it later became necessary. 6

Consequently, even if there was no explicit stipulation of counsel to the substitution plan as such (nowhere is a stipulation indicated in the record), acceptance of the standby procedure constituted acquiescence in the trial court’s substitution plan for avoiding mistrial sufficient to confer on the trial court broad discretion in determining fair conditions for putting this plan in effect.

The trial court was not obligated to defer to the defendant’s objection to the actual substitution, especially when that objection was not raised until after the originally constituted jury had indicated its inclinations by its improperly returned verdict. As we held in Leser , the substitution process does not of itself deprive a defendant of his right to a full consideration of his case by an impartial jury panel. 358 F.2d at 317 — 18.

V.

To me, the authorities on the Rule 24(c) issue are not as one-sided as the majority believes them to be. The Advisory Committee on Rules of Practice and Procedure of the Judicial Conference of the United States has proposed to amend Rule 24(c) to allow alternate jur- or substitution in situations similar to that facing the trial judge in the case before us. 7 Compare Committee on Federal Rules of Civil Procedure Judicial Conference — -Ninth Circuit, 37 F.R.D. 71 , 74 (1965).

Respected commentators disagreeing with Professor Wright include 8 J. Moore, Federal Practice ¶ 24.05 (2d ed. 1975), and Paisley, The Federal Rule on Alternate Jurors, 51 A.B.A.J. 1044 (1965). A California statute similar to the proposed rule of the Judicial Conference of the United States has been sustained against constitutional attack. Cal.Pen.Code § 1089 (1970), upheld in People v. Green, 15 Cal.App.3d 524 , 93 Cal.Rptr. 84 (1971). But cf. People v. Ryan, 19 N.Y.2d 100 , 278 N.Y.S.2d 199 , 224 N.E.2d 710 (1966).

For the reasons set forth above, I would affirm the district court.

. The district court instructed the jury and retained it in the courtroom, and then conversed with the alternate juror as follows:

[R.T. 452-53], Thereafter the jury retired to deliberate.

When it became clear that one of the original jurors, Mrs. Acuna, could not continue the judge proceeded to substitute Mrs. Del Toro. The following colloquy then occurred:

[R.T. 465],

. In Hayutin, 398 F.2d at 950-51 , the Second Circuit found insufficient prejudice on the record and affirmed the conviction, but allowed, subsequent fact-finding on the issue. In Allison, 481 F.2d at 471 , the Fifth Circuit remanded specifically for fact-finding.

. While the last sentence of the majority’s footnote 3 suggests a rule of reversal per se regardless of the circumstances of the Rule 24(c) violation, that sentence is at odds with the textual reliance upon the “dramatic changes of circumstances” in the instant case.

.Since the majority found there was no stipulation, its subsequent assertion that a stipulation made before the actual point of substitution would be ineffective is dictum. But even if that assertion be regarded as holding, the opposite conclusive presumption problem would still remain in those instances where the presence of an express stipulation at the point of substitution is disputed.

. While the court may also have been referring to the jury instructions, this does not negate the direct reference to the admonition given to Mrs. Del Toro.

. Indeed, it was defense counsel who invited this procedure by requesting that the original juror not be allowed to continue.

. In relevant part, the proposed draft rule reads as follows:

Committee on Rules of Practice & Procedure of the Judicial Conference of the United States, Preliminary Draft of Proposed Amendments to the Federal Rules of Criminal Procedure, at 8 (U.S.G.P.O., Jan., 1973).