United States of America, Plaintiff-appellee, v. Clifton Guevara, Defendant-appellant, 797 F.2d 199 (5th Cir. 1986)

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US Court of Appeals for the Fifth Circuit - 797 F.2d 199 (5th Cir. 1986) Aug. 12, 1986

William G. Nader, Love, Rigby, Dehan, Love & McDaniel, Shreveport, La. (Court appointed), for defendant-appellant.

D.H. Perkins, Jr., Joseph S. Cage, Jr., U.S. Atty., Shreveport, La., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before GEE, RUBIN, and JOLLY, Circuit Judges.


Guevara appeals his convictions of firearms offenses and witness intimidation. Most of his complaints--those of the stop and search of his automobile, of the validity of a search warrant for his motel room, of the composition of the venire, of unexpected unwelcome evidence which his attorney ploughed up in the course of cross-examination, and of the sufficiency of evidence to support one of his convictions--do not merit discussion. As to these, we affirm, without opinion. Local Rule 47.6. Because of its singularity, we discuss the remaining point briefly.

The jury retired with thirteen members, the judge having overlooked discharging the alternate juror--who, the court found, was present when the foreman was elected (apparently by acclamation) but not when any discussion of the case had commenced. Her presence as a supernumerary was discerned before discussion began and she was discharged. The court found that her presence had no effect on the actions of the jury in convicting Guevara and that there was no reasonable probability that her presence affected their discussion or vote. These fact findings are not clearly erroneous, and they satisfy the demands of our existing authority. United States v. Allison, 481 F.2d 468 (5th Cir. 1973). The convictions are