United States v. Gregory A. McFarland

Gregory McFarland (“appellant” or “McFarland”) appeals from his conviction in the district court on the charge of being a felon in possession of a firearm, 18 U.S.C. 922(g)(1). The principal issue presented is whether the district court committed reversible error by replacing a juror with an alternate after deliberations had begun. We affirm. **

PROCEEDINGS

In March of 1992, McFarland was living at his mother’s house, which was next door to the home of Cassandra Ryan in San Francisco. On March 13, 1992, McFarland entered Ryan’s house to get a drink of water. Ryan’s keys were plainly visible on top of a utility box in the kitchen, where McFarland was drinking his water. McFarland was alone in the kitchen for a couple of minutes, and then Ryan ushered him out of the apartment.

At about 4:00 a.m. on March 14, Ryan realized that the apartment had been burglarized. Her purse had been left upside-down in the kitchen, her wallet and a loaded handgun (with a pink handle grip) were missing from her purse, and her VCR was gone. Ryan’s keys and car had also disappeared. When Ryan called the police, she told them she thought McFarland had taken her keys earlier that day when he was alone…

dissenting:

The government concedes the error in seating Stout once the jury had begun its deliberations. The error was of a character described as “forfeited” — that is, an error to which counsel failed to object. There was, of course, no waiver because only the defendant in person could waive Rule 24(c). United States v. Ullah, 976 F.2d 509, 511 (9th Cir.1992). The error was plain — an obvious violation of Rule 24(c). United States v. Olano, — U.S. -, -, 113 S.Ct. 1776 , 1779 (1993). The error resulted in an unauthorized person being in the jury room while the jury deliberated. The error affected substantial rights of the defendant: the stranger in the jury room voted for his conviction. Consequently, the plain error was correctable on appeal. Id. at -, 113 S.Ct. at 1778.

We are authorized to correct plain error in our discretion as Federal Rule 52(b) provides:

We exercise this discretion to reverse a conviction only when the error “ ‘seriously affects] the fairness, integrity or public reputation of judicial proceedings.’ ” Olano , — U.S. at -, 113 S.Ct. at 1779, quoting United States v. Atkinson, 297 U.S. 157, 160 , 56 S.Ct. 391, 392 , 80 L.Ed. 555 (1936).

The unauthorized…

34 F.3d 1508 UNITED STATES of America, Plaintiff-Appellee, v. Gregory A. McFARLAND, Defendant-Appellant. No. 93-10322. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 10, 1994. Decided Sept. 13, 1994. 1 Karen L. Landau, San Francisco, CA, for defendant-appellant. 2 Kent Walker and George L. Bevan, Jr., Asst. U.S. Attys., San Francisco, CA, for plaintiff-appellee. 3 Appeal from the United States District Court for the Northern District of California. 4 Before: NOONAN, and T. G. NELSON, Circuit Judges, David Alan Ezra, * District Judge. DAVID ALAN EZRA, District Judge: 5 Gregory McFarland ("appellant" or "McFarland") appeals from his conviction in the district court on the charge of being a felon in possession of a firearm, 18 U.S.C. 922(g)(1). The principal issue presented is whether the district court committed reversible error by replacing a juror with an alternate after deliberations had begun. We affirm. ** PROCEEDINGS 6 In March of 1992, McFarland was living at his mother's house, which was next door to the home of Cassandra Ryan in San Francisco. On March 13, 1992, McFarland entered Ryan's house to get a drink of water. Ryan's keys were plainly visible…