Darab v. United States

These twenty-four appeals arise from appellants 1 convictions by a jury of unlawful entry, D.C.Code § 22-3102 (Repl.1989), at the Islamic Center located at 2551 Massachusetts Avenue, N.W., Washington, D.C., on July 11, 1983. On appeal appellants contend that their convictions violated the Free Exercise and Establishment Clauses of the First Amendment. They also contend that the trial judge abused his discretion by replacing a regular juror with an alternate, and by denying a new trial based on misconduct of the courtroom clerk. The law controlling the constitutional claim raised by appellants is settled, and they cannot prevail. We find no abuse of discretion by the trial judge in replacing the regular juror. Although we are troubled by the unprofessional conduct of the courtroom clerk, we find no abuse of discretion by the trial judge in denying the motion for a new trial. Accordingly, we affirm. 2

I.

The Islamic Center is owned and operated by an organization incorporated as the Islamic Center. 3 In November 1982, the Board of Governors named Dr. Samuel Hamoud the administrator and program planner of the Islamic Center. In' his capacity as administrator, Dr. Hamoud was responsible primarily for secular matters *129 involving the Center, including daily operations and security.

July 11, 1983, was significant to the Islamic Center for two reasons. First, a service was scheduled to celebrate a major Islamic holiday, the Eid Al-Fitr or the Feast of the Breaking of the Fast following Ramadan. In addition, it was the first day that the Mosque was open to the public following a three to four month renovation period. The Board of Governors of the Center had announced, in a newspaper advertisement, the reopening of the Mosque and invited Muslims to join in the Eid prayer to be held on July 11th. Dr. Hamoud testified that the Center was expecting 1,500 to 3,000 people; the capacity of the Mosque was only 850 to 1,000 people.

The disturbance at issue arose from a schism within the Muslim community. According to the testimony of appellants Mohammed Asi and Tariq Khan, for several years members of the Muslim community in the Washington metropolitan area were displeased with the appointed leadership at the Center and wanted to have a greater role in its administration. An election was held on November 11, 1981, to choose a Counsel of Guidance and an Imam, who serves as the religious leader for the congregation. Approximately 400 to 500 members voted, and appellant Asi was chosen by 250 votes’ to be Imam. From the time of his election through March of 1983, appellant Asi delivered the Friday sermons at the Center. On March 5, 1983, however, Asi was evicted from his apartment in the Islamic Center and the Center was closed. Nevertheless, Muslims continued attending services led by Asi outside the Center. This set the stage for the reopening of the Mosque at the celebration of the Eid on July 11, 1983.

The administrator of the Center, Dr. Hamoud, made special security arrangements for the event. He hired ushers to help seat people, H & H investigators (a private security company under contract with the Center since it had closed in March of 1983), and fourteen additional private security officers. Dr. Hamoud testified that he had made these special arrangements for two main reasons. First, he was concerned about the size of the crowd expected in view of the coincidence of the reopening and the holiday. Secondly, he anticipated that a confrontation might occur between those leading the service conducted by the appointed Imam and the dissatisfied segment of the Muslim community led by Imam Asi. 4 He based his concern on a newsletter circulated by the dissatisfied group which stated that only Mohammed Asi would lead the prayer. 5

*130 On July 11, 1983, the Islamic Center opened at 7:00 a.m. for the ritual chanting. The Center’s appointed Imam, Dr. Al-Aseer, 6 testified regarding the format of the Eid ceremony. He explained that the ritual chanting, or the “takbiraat,” is supposed to stop once the Imam issues the order for the person in charge to give a prelude to the prayer. The prelude normally takes one to three minutes, at which point the worshipers rise and the Imam begins the prayer, which is in two parts. The first prayer begins with the takbiraat, which is repeated seven times, followed by a recitation from the Koran. The second unit of prayer involves a similar sequence. According to Dr. Hamoud, the chanting was scheduled to begin at 7:00 a.m. followed by the prayer at 8:00 a.m.

Dr. Al-Aseer arrived at the Center between 7:30 and 8:00 a.m. in order to lead the prayer and deliver the sermon. 7 He went into the Mosque and shared the tak-biraat with the Muslims present who were already performing the ritual chanting. A few minutes after 8:00 a.m. he signaled to the officer in the Mosque to begin the prelude. According to Dr. Al-Aseer, as that person stood up to deliver the prelude, someone moved toward him and took the microphone, another person sat in the mih-rab, and a third person sat on the mimbar. 8 The person who took the microphone then led a chant of takbeer, in which approximately fifty people joined. At some point after that, Dr. Al-Aseer was hit and his turban was knocked to the floor. As he moved to pick up his turban, he saw two worshipers fighting with someone close to him. He left the Mosque and returned later, at 10:00 a.m., to lead a second ceremony.

Dr. Hamoud testified that when he first entered the mosque that morning it was “jammed with people like sardines.” Shortly after 8:00 a.m., he was standing in the courtyard when he heard people yelling that fighting was taking place inside the Center. Upon entering the Mosque for a second time, he heard the shouting and observed an unauthorized man sitting on the mimbar with a microphone in his hand. Dr. Hamoud approached that person and asked twice for the microphone. The man refused and continued chanting. When Dr. Hamoud held out his hand for the microphone, the man swung the microphone at him, hitting him in the arm. Dr. Hamoud then grabbed the man with his left hand and felt himself being pushed by others. He also noticed that two Muslim worshipers were defending the appointed Imam and that “[tjhere were blows being struck.” As he continued to push, Dr. Hamoud was knocked to the ground, and he observed more fighting and arguing. He was unable to stand up, despite several efforts to do so, because he was being hit and kicked. 9 He crawled toward the back of the Mosque and ran out in order to call the police.

As he ran out of the Mosque, Dr. Ham-oud saw Sadiq Hassan-Bey of H & H Security and requested that he go in and attempt to quiet the disturbance. Hassan-Bey testified that when he went to the front door of the Mosque, he saw “[b]asi-cally pandemonium. I saw individuals at the rear of the mosque being involved in some type of multiple struggles. I observed an individual sitting on what is *131 known as the mimbar. I observed others individuals involved in shouting matches.” According to Dr. Hamoud, Hassan-Bey responded that police assistance was needed, and Dr. Hamoud approached Lieutenant Parker of the Metropolitan Police Department, who was standing outside the gates of the Center. Dr. Hamoud asked Lieutenant Parker to take his officers into the mosque and break up the disturbance. After Lieutenant Parker radioed for assistance 10 , Dr. Hamoud conferred again with Hassan-Bey in the courtyard in order to assess the situation. According to Dr. Hamoud, Hassan-Bey informed him that they had to keep the situation under control until the rest of the police officers arrived. 11

In arriving at a decision on how to handle the situation, Dr. Hamoud consulted with various sources. In addition to discussing the matter with Hassan-Bey, Dr. Hamoud had a conversation with Deputy Chief Connors and Lieutenant Parker about how to handle the situation. He concluded that the police and security officers would have to clear the Mosque and that the service would be restarted later. 12 Dr. Hamoud testified that this was his decision to make because the Board of Governors had given him “the authority to run the security operation, and if necessary, to have people evicted from the [MJosque....” 13

Upon making the decision to have the Mosque cleared, Dr. Hamoud instructed Hassan-Bey to go into the Mosque and warn those inside that if they did not leave peacefully, arrests would have to be made. 14 Hassan-Bey testified that he gave the warnings in a “clear and distinct” voice at around 9:00 a.m., and that he specifically warned appellant Al Asi to have his people leave or they would be arrested. Dr. Ham-oud, from about thirty feet away, heard Hassan-Bey give the warnings and recite the Code provisions over the bullhorn. Lieutenant Parker also heard the warnings from fifteen feet away. 15 Special Police Officer Diggs testified that after he heard the warnings, the people inside the Mosque continued chanting and locked arms. After three warnings had been issued by Has-san-Bey, and no one left the Mosque, Dr. Hamoud asked the police to enter the Mosque and assist with the arrests. 16

*132 Most of the appellants who testified claimed that they never heard the warnings to leave the Mosque. Specifically, Appellant Asi testified that he “definitely” did not hear the announcement by Hassan-Bey; he attributed this to the fact that about sixty people were chanting the tak-biraat at the time and that they were located a distance from the speaker. In addition, most of the appellants who testified claimed that they were operating under a belief that they had the right to remain in the Mosque because no one had the authority to interfere with a religious service.

Regarding their right to remain, appellant Asi explained:

My belief was that the services ... the prayer services at the Islamic Center and the Islamic Center, itself, was a place of worship for all Muslims. And that no one, no group of people whatever their characterization might be, had the right to interfere in the religious services designated for this place of worship ... the Mosque or the Mosjid.

This belief was based on a “fatwa,” 17 which appellant Asi had obtained from the Al-Azhar University in Cairo, Egypt, and circulated and discussed with fellow Muslims in the community. 18 The fatwa stated:

Once (a piece of) land is endowed for the purpose of constructing a mosque upon it, then it is not permissible for anyone to own that mosque nor to claim an ownership of the mosque. It remains in the ownership of God forever. No one— Muslim or non-Muslim — may ban anyone from praying within the mosque. And no individual, organization or group may exercise control of admission for prayers in it, nor may restrict prayers.

The jury found appellants guilty of unlawful entry.

II.

In appealing their convictions of unlawful entry, appellants first contend that their prosecutions violated the Free Exercise and Establishment Clauses of the First Amendment. Second, they maintain that because they had the lawful authority to remain in the Mosque, the government failed to meet its burden of proof to sustain the unlawful entry convictions. Third, they assert that even if the elements of unlawful entry were proven beyond a reasonable doubt, their convictions cannot be upheld because they had a bona fide belief in their right to remain in the Mosque.

A.

Appellants’ Free Exercise Clause and Establishment Clause argument is based on the proposition that the invocation of the unlawful entry statute was an impermissible government intrusion upon resolution of a religious controversy. Specifically, they maintain that in order to reach a guilty verdict the jury had to resolve several contentious principles of the Islamic religion such as whether anyone can “own” a mosque, whether anyone can prohibit Muslims from praying in a mosque, and what the proper method of selecting an Islamic Imam is.

The Supreme Court has recently addressed the interplay between state crimi *133 nal laws and the exercise of religion. In Employment Division Department of Human Resources v. Smith (Smith II), 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), the Court considered whether an Oregon criminal statute prohibiting the religious use of the drug peyote violated the Free Exercise Clause. In concluding that it did not, the Court rejected the argument that the religious motivation underlying the defendants’ conduct placed them beyond the reach of a criminal law that was not specifically aimed at religion and was admittedly constitutional as applied to others. Id. 494 U.S. at 876-77, 110 S.Ct. at 1599. Noting the distinction between regulation of religious beliefs and religious practices, the Court quoted from an earlier decision:

“Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.... Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”

Id. at 879, 110 S.Ct. at 1600 (quoting Reynolds v. United States, 98 U.S. 145, 166-67, 25 L.Ed. 244 (1879) (holding criminal laws against polygamy constitutional as applied to Mormons whose religion commanded the practice)). The Court stated further that where a state enacts a neutral, generally applicable criminal law, it need not necessarily provide for religious exemptions, explaining, quoting again, that:

To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is “compelling” — permitting him, by virtue of his beliefs, “to become a law unto himself,” ... —contradicts both constitutional tradition and common sense.

Smith II, supra, 494 U.S. at 885, 110 S.Ct. at 1603 (quoting Reynolds, 98 U.S. at 167) (footnote omitted). To hold otherwise, the Court reasoned, would result in constitutionally mandated religious exemptions from civic duties ranging from compulsory military service to health and safety regulation in the form of manslaughter and child neglect laws. Smith II, supra, 494 U.S. at 888-89, 110 S.Ct. at 1605-06.

Like the criminal law in Smith II, the District’s unlawful entry statute is a neutral and generally applicable law. It is not directly aimed at religious practice. As invoked here, the unlawful entry statute was used to quell a disturbance, not a religious service. Thus, it was used to regulate conduct, not beliefs, a goal vindicated by the Supreme Court in both Smith II and Reynolds. The Free Exercise Clause cannot be used as a means to escape civic duties. Smith II, supra, 494 U.S. at 888-89, 110 S.Ct. at 1605-06.

Moreover, this court has rejected the same contention made by appellants in a case involving similar facts. In Riley v. District of Columbia, 283 A.2d 819, 821 (1971), cert. denied, 405 U.S. 1066, 92 S.Ct. 1499, 31 L.Ed.2d 796 (1972), the police arrested several Catholic activists for disrupting a Catholic mass by handing out leaflets during the offertory. In upholding their convictions under D.C.Code § 22-1114 (disturbing religious congregation), the court rejected the argument that the convictions constituted an impermissible intrusion into a religious dispute over a purely theological matter. The court noted that:

The trial court did not attempt to decide an ecclesiastical question nor to enforce religious conformity, as appellants would have us believe. It did not receive the testimony as to the customs and usages of Blessed Sacrament Church in order to interpret canon law or liturgical practice but solely as an aid in determining whether or not appellants had violated a criminal statute.

Id. at 824-25.

Similarly, in the instant case, the jury was not required to resolve any religious issues of contention in order to determine whether appellants had violated the unlawful entry statute. The government and the defense did introduce evidence relating to the Imam controversy and whether Muslim law permits a Mosque to be privately *134 owned. But, this evidence, as in Riley, was not offered to interpret and resolve the nuances of the theological debate. Rather, the evidence was relevant to determining whether appellants were guilty of unlawful entry or had a sufficient defense to that charge. See infra Part II B & C. Nor was the jury put in the position of enforcing religious conformity; it was simply presented with evidence relating to the elements of unlawful entry, including a deed to the property, evidence of a disturbance, and evidence of defenses, and asked to determine whether a crime had occurred, not to choose sides. Therefore, appellants’ contention that invocation of the unlawful entry statute violated the Free Exercise Clause fails.

B.

Appellants also contend that the government’s evidence was insufficient to prove beyond a reasonable doubt that appellants did not have lawful authority to remain in the Mosque after being asked to leave by officials of the Center. 19 We disagree.

In Riley, supra, 283 A.2d 819, the court acknowledged that the government’s burden to show intent must not ignore customs and usages in a particular religious setting:

We would agree that not every interruption of a religious service constitutes a violation of law. Certainly to justify the imposition of criminal sanctions for disturbing a religious meeting a person must have intentionally committed an act or acts which are found to have substantially disrupted the service. A conviction cannot be had for conduct which is orderly and within the known customs and usages governing the religious exercise or proceedings in the church. On the other hand, violence of conduct is not a prerequisite for conviction of disturbing a religious meeting.

Id. at 823. In that case the court concluded that there was sufficient evidence of guilt where the defendants had disobeyed the warning issued at the beginning of the mass by the pastor, acted contrary to the customs of the Church by handing out leaflets during the offertory, and caused the prayers to be interrupted and the mass stopped. Id. at 824.

Viewing the evidence, as we must, in the light most favorable to the government, 20 the testimony of Imam Al-Aseer described the order of the prayer and celebration that was to take place at the Mosque on July 11, 1983, and five government witnesses described the violent disturbance that occurred during the prayers instead. Indeed, even appellant Asi supported the conclusion that the conduct which occurred that day was not within the bounds of the customs of the Muslim religion when he testified that if a person came into the Mosque and caused a disturbance, “he could be requested to leave the Mosque, no doubt about it.”

In addition, the government also introduced sufficient evidence of the legal elements of unlawful entry. See United States v. Rothmeier, 570 A.2d 811, 813 (D.C.1990); O’Brien v. United States, 444 A.2d 946, 948 (D.C.1982); Leiss v. United States, 364 A.2d 803, 806 (D.C.1976), cert. denied, 430 U.S. 970, 97 S.Ct. 1654, 52 L.Ed.2d 362 (1977). 21 The officials in *135 charge of security at the Mosque and the police described the circumstances under which appellants refused to leave the Mosque after a disturbance had disrupted the service and they had been asked to leave by the person with lawful authority to do so. The government offered sufficient evidence to show that Dr. Hamoud and Sadiq Hassan-Bey qualified as persons legally authorized to demand that those involved in the disturbance leave. Evidence relating to any disagreement between Dr. Hamoud and Sadiq Hassan-Bey about precisely when persons inside should be told to leave is irrelevant to the issue of whether appellants were ordered to leave by a person or persons with the legal authority to do so. See Woll v. United States, 570 A.2d 819, 821 (D.C.1990) (“ ‘a person may be lawfully in charge even though there are other persons who could, if they chose to do so, countermand or override his authority’ ”) (quoting Whittlesey v. United States, 221 A.2d 86, 89 (D.C.1966)). 22 In addition, Woll, supra, 570 A.2d at 822, makes clear that even a person without a possessory interest in the property can issue the order to leave, and consequently, there is no need to scrutinize precisely the limits of Dr. Hamoud’s authority. The evidence showed that the Board of Governors vested Dr. Hamoud with considerable authority with respect to managing the daily affairs of the Center and maintaining security, and he was given the express authority to remove unauthorized persons from the Center and keep “troublemakers” out. Furthermore, in view of the fact that the Mosque is private property, as opposed to government property, “[t]he mere demand of the person lawfully in charge to leave necessarily deprives the other party of any lawful authority to remain on the premises.” O’Brien, supra, 444 A.2d at 948 (citing Feldt v. Marriott Corp., 322 A.2d 913, 915-16 (1974)). See also Byrne v. United States, 578 A.2d 700, 702 (D.C.1990) (citing O’Brien for the same proposition). From the testimony of five government witnesses that they heard the warnings to leave given by Hassan-Bey, and a tape recording of the actual warnings that the jury itself heard, a reasonable jury could find that appellants did not have a right to remain thereafter in the Mosque.

Although appellants contend that a property, statutory, or constitutional right to remain on property precludes a conviction of unlawful entry, they fail to cite a single case in which such a claim was successfully advanced. Nor, as noted in Part II A, supra, can they prevail on the basis of their free exercise claim. Their argument that “the evidence failed to establish beyond a reasonable doubt that the Muslim appellants had no right to use of the property for the purpose of congregational prayer” misses the mark. Appellants were not arrested for praying in the Mosque. The government’s evidence demonstrated that during the course of the celebration of the Eid a disturbance broke out. In fact, the government’s evidence showed that after being asked to leave, appellants locked arms and continued to pray despite the violent disturbance that had disrupted the ceremony. A reasonable jury could have found that the disturbance involved violence, 23 and that appellants were arrested *136 only when they failed to leave the scene of a disturbance after being asked to do so, precisely for the reason to bring order inside the Mosque so that the prelude could be given and the prayers could commence.

C.

Appellants also contend that the government could not prove that they had the requisite intent to commit the crime of unlawful entry because they had a reasonable belief in their right to enter and remain in the Mosque. While a bona fide belief defense to the crime of unlawful entry does exist, appellants’ contention, while not without some merit, is ultimately unpersuasive.

When a person enters a place with a good purpose and a bona fide belief in his or her right to enter, that person lacks the requisite criminal intent for unlawful entry. Smith v. United States, 281 A.2d 438, 439 (D.C.1971). A defendant is entitled to an instruction, where the existence of such a belief is “genuinely questionable,” to the effect that the government must prove beyond a reasonable doubt that the defendant did not have a reasonable, good faith belief in his lawful authority to stay. Id. at 439; see Criminal Jury Instructions for the District of Columbia, No. 4.44 comment (3d ed.1978). However, “to warrant an instruction it is not sufficient that an accused merely claim a belief to the right to enter. A bona fide belief must have some justification — some reasonable basis.” Smith, supra, 281 A.2d at 439. As elaborated in Gaetano v. United States, 406 A.2d 1291, 1294 (D.C.1979), the court stated:

The clear rule of law ... is that a reasonable belief in an individual’s right to remain on property not owned or possessed by that individual must be based in the pure indicia of innocence. There must be some evidence that, for example, the individual had no reason to know that he was trespassing on the rights of others. Perhaps the individual could reasonably believe that he had title or a possessory interest in the land, or that the land was publicly owned. Perhaps he could believe that he was invited onto the land.

The court further stated in Morgan v. District of Columbia, 476 A.2d 1128, 1133 (D.C.1984), that “the belief must be based on a reasonable mistake of fact, or on a reasonable mistake as to a non-penal property law which, if not a mistake, would justify remaining on the property.... General intent is not negated by a mistaken belief about the applicability of a penal law.” In the instant case, the government presented sufficient evidence from which a reasonable jury could conclude that appellants’ motivation did not rise to the level of a reasonable, good faith belief in lawful authority to remain in the Mosque after being asked to leave.

First, appellants based their defense on their reliance on the fatwa and the Koran, arguing that such reliance negated the criminal intent necessary for the crime of unlawful entry. 24 However, the government presented evidence to raise a reasonable question regarding whether appellants had a bona fide belief in their lawful, as opposed to religious, authority to remain in the Mosque. The jury could fairly have credited the testimony of the five government witnesses who stated that they heard the warnings issued by Hassan-Bey. Indeed, appellant Asi’s own testimony undermines appellants’ claim of a bona fide belief. Asi conceded during cross-examination that before he saw the deed to the property on which the Mosque is located, which identified the Islamic Center as the owners, he obtained the fatwa from the Al-Azhar University. When asked whether the deed affected his belief regarding the legal validity of the fatwa, Asi responded:

*137 [ASI]: It was certainly a consider-ation_ It’s a deed of the Islamic Center and it’s something that cannot be denied. And because of that we were trying to establish relations with the Board of Governors who are the owners, the legitimate people who are responsible for that deed and because they were obdurate in their approach of the administration of the Islamic Center....

[THE PROSECUTOR]: So prior to July 11, 1983, did you understand that the property on which you entered was owned by the Board of Governors, isn’t that true, sir?

[ASI]: Yes. That is true.

The touchstone of the bona fide belief defense is the belief in lawful authority to stay, not moral or religious authority. 25 Reynolds, supra, 98 U.S. at 166-67 (to hold otherwise would “make the professed doctrines of religious belief superior to the law of the land, and in effect ... permit every citizen to become a law unto himself [or herself]”). Yet each defense witness who was asked the basis of his belief that he could not be ejected from the Mosque cited the Koran and the fatwa. Furthermore, by acknowledging that the Board of Governors constituted the “true” owner of the Center in the eyes of the law, appellant Asi undercut appellants’ claim of a bona fide belief in their lawful authority to stay.

Second, appellants could not prevail simply by reciting their belief in the fatwa and Koran since Gaetano makes clear that they had to demonstrate that the belief in their lawful right to stay was reasonable and based in the “pure indicia of innocence.” Gaetano, supra, 406 A.2d at 1294. Evidence of awareness of a request to leave will defeat a bona fide belief claim. See Smith, supra, 281 A.2d at 440 (defendant not entitled to a bona fide belief instruction where he acknowledged that he knew intrusion was unwarranted by testifying that gate of property on which he trespassed was kept locked to keep people from going through); Jackson v. United States, 357 A.2d 409, 411 (D.C.1976) (where girlfriend had ordered defendant to leave her apartment, “any grounds for a bona fide belief in his right to remain lapsed”). At trial, government witnesses testified that they were able to hear the warnings to persons inside the Mosque given by Hassan-Bey. Although appellants testified that they did not hear the warnings, this was an issue well within the jury’s province to resolve. See Irick v. United States, 565 A.2d 26, 30 (D.C.1989) (citing Stack v. United States, 519 A.2d 147, 159-60 (1986)). In addition, appellant Asi acknowledged on two occasions the validity of requesting a person who disturbs a service to leave the Mosque:

[THE PROSECUTOR]: Now Mr. Asi, if someone came in the Mosque and caused a disturbance in the Mosque, could that person be requested to leave the mosque?

[ASI]: Of course if he created a disturbance he could be requested to leave the mosque, no doubt about it.

******

[THE PROSECUTOR]: Is it your belief, sir, that a group of people who prevented Dr. Aseer from conducting the service at the Islamic Center could then be requested to leave the Mosque?

[ASI]: My belief is that if anyone disrupted a religious service of the Imam of the Muslim congregation in Washington, D.C. should be requested to leave the Mosque.

*138 Combined with his testimony acknowledging the “true” owners of the Center, appellant Asi’s testimony cast doubt on the reasonableness of the belief of appellants in their lawful right to remain.

Finally, appellants do not suggest that their reasonable belief was rooted in either a reasonable mistake of fact or a reasonable mistake of non-penal property law. See Morgan, supra, 476 A.2d at 1133. Their reliance on the fatwa does not operate as a mistake of fact, nor does it represent a form of property law. Consequently, appellants’ bona fide belief claim ultimately fails.

III.

Appellants also contend that the trial judge committed prejudicial error by replacing a regular juror with an alternate juror in the absence of any factual support or legally relevant reason. For evidence of actual prejudice they rely on a signed statement of the dismissed juror indicating a disposition toward the defense and her post-trial testimony about extrajudicial conversations with the courtroom clerk about court employment. We find no abuse of discretion.

The dismissal arose as a result of events that began during a recess in defense counsel’s closing argument. Juror McKeython sent a note to the trial judge stating that she was scheduled to leave on a prepaid, nonrefundable trip the next morning. The judge summoned her to the courtroom to discuss the matter, with both the government and the defense present. When defense counsel objected to dismissal of the juror, the trial judge instructed each of the parties to contribute twenty dollars in order to reimburse her. The next morning, after the juror had already missed her trip, the prosecutor retracted his willingness to reimburse the juror and requested that the juror be removed and replaced with an alternate. The prosecutor advised the judge that it was the opinion of his office that any such compensation or reimbursement would be improper as well as inequitable with regard to the other jurors who might also be incurring expenses. Defense counsel objected to dismissal and stated that the defense would be willing to provide the entire forty dollars in an unmarked envelope. The prosecutor expressed concern that the juror would still' know the source of the money.

The trial judge granted the government’s request for removal of the regular juror and substitution of an alternate, stating that the reimbursement idea was “impermissible.” The judge took the defense motion for a mistrial under advisement and denied the defense request for further interrogation of the juror for the record, concluding that “this situation entirely speaks for itself.” In their motion for a new trial, appellants submitted the signed statement from the excused juror expressing her willingness to continue serving at the time she was dismissed, her ability to remain impartial, and her belief that she had not seen evidence that convinced her of appellants’ guilt beyond a reasonable doubt. The trial judge denied the motion by order of July 31, 1984, stating that the juror’s impartiality had in fact been impaired and that her removal and replacement with an alternate did not prejudice appellants.

Superior Court Criminal Rule 24(c) provides that alternate jurors shall replace regular jurors who are found to be “unable or disqualified to perform their duties” pri- or to deliberation. The decision of whether to replace regular jurors is within the discretion of the trial judge, and will only be reversed where there has been an abuse of discretion. 26 Richbow v. District of Columbia, 600 A.2d 1063, 1064-65 n. 1 (1991); Golsun v. United States, 592 A.2d 1054, 1057 (D.C.1991). See United States v. Smith, 918 F.2d 1501, 1512, 1525 (11th Cir.1990) (“We review the exercise of this discretion to ensure that the district court did not discharge the juror ‘without factual support, or for a legally irrelevant rea *139 son;’ ” defendant must show prejudice) (quoting United States v. Farjardo, 787 F.2d 1523, 1525 (11th Cir.1986)), cert. denied, — U.S. —, 112 S.Ct. 151, 116 L.Ed.2d 117 (1991); United States v. Rodriguez, 573 F.2d 330, 332 (5th Cir.1978). 27 The record reflects that the trial judge’s decision to dismiss juror McKeython was “within the range of permissible alternatives” in the exercise of his discretion. See generally Johnson v. United States, 398 A.2d 354, 365 (D.C.1978).

Although the juror indicated her willingness to serve on the jury without compensation for the trip, as the government brief states, “the