United States Court of Appeals
For the First Circuit
No. 01-1339
UNITED STATES OF AMERICA,
Appellee,
v.
FELIX C. REYNOSO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Selya, Circuit Judges.
James S. Hewes, by appointment of the court, on brief for
appellant.
Gretchen Leah Witt, United States Attorney, Peter E. Papps, First
Assistant United States Attorney, Jean B. Weld, Assistant United States
Attorney, and Terry L. Ollila, Assistant United States Attorney, on
brief for the United States.
January 15, 2002
Per Curiam. Appellant Felix Reynoso seeks reversal of his
September 7, 2000, criminal conviction on three counts of distributing
and one count of conspiracy to distribute crack cocaine. 21 U.S.C. §§
841(a)(1), 846. Reynoso makes two arguments: that the presence of an
alternate juror tainted the jury's deliberations and that the evidence
at trial was insufficient to support the verdict.
The jury that heard Reynoso's case consisted of twelve jurors
and two alternates. The alternates were dismissed after the jury was
charged, but one of them stayed with the jury during its deliberations,
contrary to the court's instructions. When the alternate's presence
was brought to the court's attention, the district judge interviewed
all twelve jurors and determined that the alternate had taken no part
in the deliberations. He nevertheless offered to grant Reynoso a
mistrial, but Reynoso declined after consulting with his lawyer. The
jury later convicted Reynoso on all four counts.
Whether or not the presence of the alternate during
deliberations was a violation of the current Fed. R. Crim. P. 24(c),
which was amended in 1999 to permit alternates to be retained in
certain circumstances, it creates no grounds for reversal. Arguably,
Reynoso's decision to forego a mistrial constitutes waiver of any claim
of error. See United States v. Mitchell, 85 F.3d 800, 807 (1st Cir.
1996). However, there is some authority under the old version of the
rule suggesting that--in order to preserve the integrity of the jury
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system--errors of this kind should not be excused by agreement of the
parties. See United States v. Olano, 507 U.S. 725, 737 (1993)
(assuming the point arguendo); id. at 741-43 (Kennedy, J., concurring)
(noting "good reasons" for nonwaivability); see also United States v.
Allison, 481 F.2d 468, 472 (5th Cir. 1973); 2 Wright, Federal Practice
& Procedure § 388, at 52 (1969).
Whether or not the claim is deemed waived, it was certainly
forfeited by Reynoso's failure to object and is reviewable only for
plain error--requiring far more than just that the error be clear.
Among other requirements, Reynoso must show that the alternate's
presence created actual prejudice. See Olano, 507 U.S. at 734-35
(citing Fed. R. Crim. P. 52(b)). But after due investigation the
district court supportably found that the alternate had not affected
the deliberations, and Reynoso offers no evidence or arguments to the
contrary.
Reynoso's sufficiency claim is also forfeit because he failed
to renew his Rule 29 motion after the presentation of his defense.
United States v. Stein, 233 F.3d 6, 20 (1st Cir. 2000). The evidence
implicating Reynoso included testimony of an undercover police officer
who bought crack from Reynoso on three occasions, and of two co-
conspirators who helped Reynoso sell crack. This was more than
sufficient to support the verdict; there was thus no error at all, let
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alone the gross injustice needed to avoid the forfeiture. See id. at
21.
Affirmed.
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