                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                        AUG 13 2003
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                       No. 03-5014
 v.
                                                 (D.C. No. 02-CR-52-EA)
                                                       (N.D. Okla.)
 ROBERT LEE VARNEDORE,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before EBEL, HENRY and HARTZ, Circuit Judges.


      Robert Lee Varnedore was convicted by a jury of possession of a firearm

and ammunition after former conviction of a felony in violation of 18 U.S.C.

§§ 922(g)(1) and 924(a), and possession of stolen firearms in violation of

18 U.S.C. §§ 922(j) and 924(a)(2). Varnedore was sentenced to two concurrent

terms of 115 months’ imprisonment. On appeal, Varnedore claims that (1) the



      *
        After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. This
Order and Judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be
cited under the terms and conditions of 10th Cir. R. 36.3.
district court abused its discretion when it replaced a juror with an alternate; (2)

that the district court committed plain error in admitting into evidence weapons

found during two separate searches; and (3) that the district court erred in

refusing to grant his motion for a new trial when, after trial, the Government

learned that one of its witnesses had a prior conviction more than 10 years old

that had not been disclosed to the defense. We conclude that Varnedore’s claims

are without merit, and we AFFIRM his conviction.



                                  BACKGROUND

      In December 2001, Varnedore went to a car dealership in Tulsa, Oklahoma

to trade in a pickup truck and purchase a car. A number of his actions at the

dealership caused the staff there to be suspicious of him. He sought to pay cash

for the car, had a large sum of cash on his person, and offered to bribe the

salesman to complete his purchase quickly. (ROA III at 104–05.) The driver’s

license Varnedore produced for identification had a picture that did not resemble

him, and the signature on the license did not match Varnedore’s signature on the

dealership’s paperwork. (Id. at 107–08.) In addition, he wanted to register the

car in another name. (Id. at 108.) Based on this suspicious activity, the

dealership notified the Tulsa police.




                                          -2-
      Two police officers arrived at the dealership to investigate what they

thought to be a fraud in progress. (Id. at 120–21.) They inspected the license

Varnedore had used and asked if it was his. Varnedore said “yes.” (Id. at

122–24.) They then asked if he had any other identification, and after Varnedore

said he had none they asked Varnedore for consent to search him. Varnedore

consented to the search. Finding no other identification on Varnedore’s person,

one of the officers asked him where the vehicle was that Varnedore was trading

in. (Id. at 134–35.) The officer then went to the pickup truck and looked inside

for anything else that might confirm Varnedore’s identity. (Id.) While inspecting

the interior of the pickup, the officer noticed the butt of a gun under the passenger

seat and removed a loaded handgun. (Id. at 135.) The officers then arrested

Varnedore. (Id. at 145.)

      The day before he was arrested, Varnedore had checked into a Tulsa motel

and rented a room for two days. (Id. at 156–58, 163–65.) On December 31,

2001, two days after he was arrested and also after his rental of the motel room

had expired, a housekeeper cleaning the room discovered four rifles and a pistol

under the mattress. (Id. at 167–68.) The housekeeper notified the police, and

they came and took possession of the guns. (Id. at 168.)

      In March 2002, a federal grand jury indicted Varnedore on three counts:

possession of a firearm and ammunition after former conviction of a felony in


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violation of 18 U.S.C. §§ 922(g)(1) and 942(a), possession of stolen firearms in

violation of 18 U.S.C. §§ 922(j) and 924(a)(2); and possession of a firearm and

ammunition while a fugitive from justice in violation of 18 U.S.C. §§ 922(g)(2)

and 924(a)(2). (ROA I, Doc. 1.)

      The trial was held in July 2002. On the day the trial was scheduled to

begin, a jury, with one alternate juror, was selected and sworn. (ROA III at

20–73.) After the jury was chosen, the court recessed before the trial was to

commence. During the recess, one of the jurors informed the court that she could

not continue with the trial because she was suffering from serious shoulder pain.

(Id. at 76–77.) The court questioned the juror about her pain and was told that the

pain was severe. (Id. at 84–85.) The juror said her pain medication did not

relieve the pain and only made her head feel “fuzzy” and made it difficult to

concentrate. (Id. at 85.) The court then replaced the disabled juror with the

alternate pursuant to Fed. R. Crim. P. 24(c). (Id. at 85.)

      Varnedore was convicted by the jury of counts one and two of the

indictment on July 2, 2002. 1 Shortly after trial, the Government discovered that

one of its witnesses, Tom Marrs, had a criminal history that it had failed to reveal



      1
        Prior to jury selection, the Government filed a motion to proceed to trial
on Counts 1 and 2 only, reserving the right to proceed on Count 3 at a later time.
(ROA I, Doc. 18.) After trial, the district court granted the Government’s motion
to dismiss Count 3 without prejudice. (ROA I, Docs. 23, 24.)

                                         -4-
to the defense. (ROA I, Doc. 30.) The Government immediately notified

Varnedore of this fact, explaining that it had not learned of the conviction before

or during trial because a Government agent failed to correctly formulate a

database query that would have revealed Marrs’s prior conviction. (Id. at 2.)

Marrs had been convicted in 1991 on federal bank fraud charges and sentenced to

ten months in prison. He was released in February 1992, more than ten years

before he testified at Varnedore’s trial. (Id. at 1, 3.)    At trial, Marrs had

testified that he worked at the dealership that sold Varnedore the pickup truck.

He provided limited testimony with respect to the fact that no gun was present in

the truck when Varnedore purchased it. (ROA III at 184.) This testimony was

cumulative of testimony given by Robbie Mooney, the salesperson at the

dealership who actually sold the pickup to Varnedore. Mooney went on a test

drive with Varnedore in the pickup and testified that he did not notice any guns in

the pickup at that time. (Id. at 190–91.)

      After receiving the information about Marrs, Varnedore moved for a new

trial, arguing that the Government violated Brady v. Maryland, 373 U.S. 83

(1963), by failing to disclose Marrs’s criminal history before trial. The district

court denied the motion, reasoning that the evidence of Marrs’s prior conviction,

if disclosed, would not have changed the outcome of the trial. (ROA I, Doc. 30,

at 2–4.)


                                            -5-
      Varnedore timely filed a notice of appeal and now challenges the

replacement of the disabled juror with the alternate, the admission of the guns

into evidence, and the district court’s refusal to grant him a new trial. We take

jurisdiction pursuant to 28 U.S.C. § 1291 and, finding no merit to Varnedore’s

challenges, AFFIRM his conviction.



                                    DISCUSSION

I.    Replacement of juror

      We review a district court’s decision to replace a juror for abuse of

discretion. United States v. McVeigh, 153 F.3d 1166, 1185 (10th Cir. 1998). We

will not disturb a trial court’s decision under the abuse of discretion standard

unless we have a “definite and firm conviction that the lower court made a clear

error of judgment or exceeded the bounds of permissible choice in the

circumstances.” Moothart v. Bell, 21 F.3d 1499, 1504 (10th Cir. 1994) (citation

omitted).

      Varnedore argues that instead of replacing the disabled juror with an

alternate, the district court should have selected a new jury. However, the Federal

Rules of Criminal Procedure expressly provide for the empaneling and use of

alternate jurors:

       In General. The court may empanel no more than 6 jurors, in addition to
the regular jury, to sit as alternate jurors. An alternate juror, in the order called,

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shall replace a juror who becomes or is found to be unable or disqualified to
perform juror duties. Alternate jurors shall (i) be drawn in the same manner, (ii)
have the same qualifications, (iii) be subject to the same examination and
challenges, and (iv) take the same oath as regular jurors. An alternate juror has
the same functions, powers, facilities and privileges as a regular juror.

Fed. R. Crim. P. 24(c)(1). 2

      In the instant case, before the trial began, one juror informed the court that

she could not proceed with the trial because of a painful injury and the effects of

her pain medication. The district judge carefully questioned the juror to

determine the extent of her disability and concluded that she could not fulfill her

responsibilities as a juror. Having excused that juror, the trial judge replaced her

with the alternate. The district trial did not exceed the bounds of permissible

choice in the circumstances, but properly followed the command of Rule 24(c)(1):

“An alternate juror . . . shall replace a juror who becomes or is found to be unable

or disqualified to perform juror duties.” Fed. R. Crim. P. 24(c)(1). The district

court placed on the jury the alternate juror selected by both parties at voir dire

and the trial proceeded. Because the district court properly followed Rule

24(c)(1) in replacing a juror who was found to be unable to perform her duties, it

was not an abuse of discretion for the district court to proceed with the trial

instead of picking a new jury.


      2
        The district court relied upon the 2002 version of Rule 24(c) that was in
effect at the time of Varnedore’s trial in July 2002. Effective December 1, 2002,
Rule 24(c) was amended as part of the general restyling of the Criminal Rules.

                                         -7-
II. Admission of weapon evidence

      Varnedore’s second challenge is to the admission at trial of the guns found

in his pickup truck and in the motel room in which he had been staying. He

forthrightly acknowledges that he did not make an objection to this effect at trial.

(Aplt. Br. at 8.)

      “Generally, the failure to object to the admissibility of evidence is a waiver

absent plain error. Therefore, we must determine whether the admission of this

evidence constitutes plain error.” United States v. Gomez, 67 F.3d 1515, 1524

(10th Cir. 1995) (citing United States v. Jones, 44 F.3d 860, 875 (10th Cir. 1995),

and Fed. R. Crim. P. 52(b)). To constitute plain error, the error must be: (1) plain

(2) error (3) that affects substantial rights and (4) that seriously affects the

fairness, integrity, or public reputation of judicial proceedings. See United States

v. Olano, 507 U.S. 725, 732–36 (1993).

      Turning first to the handgun seized in the pickup truck at the car

dealership, we find that its admission into evidence at trial was not plain error.

Any one of three legitimate justifications could conceivably have been offered by

the Government for the gun’s admission had its admission been challenged. First,

although the record is unclear (due to Varnedore’s failure to object), Varnedore

may actually have consented to the search of his pickup truck at the same time

that he consented to a search of his person. (ROA III at 133–35.) Second, the


                                          -8-
gun could have been admissible as a search incident to a lawful arrest, as the

officers likely would have arrested Varnedore for fraud or attempted fraud and

found the gun after routinely searching his pickup truck after the arrest. See

United States v. Holt, 264 F.3d 1215, 1225 (10th Cir. 2001). Finally, because

Varnedore was attempting to trade in the pickup truck, he may have possessed a

diminished expectation of privacy in the truck. We need not choose among these

three potential justifications for the search, however, for any one of them suffices

to demonstrate that the district court’s decision to admit the gun found in

Varnedore’s truck did not constitute plain error.

      We also reject Varnedore’s challenge to the admissibility of the guns found

in his motel room. Although a motel guest does have a reasonable expectation of

privacy in his room, United States v. Gordon, 168 F.3d 1222, 1225–26 (10th Cir.

1999), that expectation or privacy is lost when the rental period for the room

expires. United States v. Croft, 429 F.2d 884, 887 (10th Cir. 1970); United States

v. Rahme, 813 F.2d 31, 34 (2d Cir. 1987). Here, the motel housekeeper entered

Varnedore’s room and discovered the guns after the rental period had expired.

“Since after the rental period expires a guest has no right of privacy, there can be

no invasion thereof.” Croft, 429 F.2d at 887.

      Moreover, the guns were discovered by the motel’s housekeeper, not by a

state actor. “Although the Fourth Amendment does not apply to a search or


                                         -9-
seizure, even an arbitrary one, effected by a private party on his own initiative,

the Amendment protects against such intrusions if the private party acted as an

instrument or agent of the Government.” Skinner v. Railway Labor Executives’

Ass’n, 489 U.S. 602, 614 (1989). Here, there is no allegation, much less any

evidence, that the housekeeper was acting as a Government agent or instrument

when she entered Varnedore’s room and discovered the guns. Accordingly, it was

not error, much less plain error, for the district court to admit into evidence the

guns discovered in Varnedore’s motel room.



III. Motion for new trial

      Finally, Varnedore argues that the Government’s failure to disclose until

after trial the criminal record of its witness Tom Marrs constituted a violation of

Brady v. Maryland, 373 U.S. 83 (1963), and that the district court thus

erroneously denied Varnedore’s motion for a new trial on that ground. We review

de novo the district court’s denial of a motion for a new trial based on an alleged

Brady violation. United States v. Pearl, 324 F.3d 1210, 1215 (10th Cir. 2003).

      “To establish a Brady violation, a defendant must show ‘1) that the

prosecution suppressed evidence; 2) that the evidence was favorable to the

accused; and 3) that the evidence was material.’” Id. (quoting Smith v. Sec’y of

N.M. Dep’t of Corr., 50 F.3d 801, 824 (10th Cir. 1995)). We find that


                                         - 10 -
Varnedore’s argument fails on the first and third Brady prongs. With respect to

the first prong, the record does not support a finding that the Government

suppressed the evidence of Marrs’s criminal history. Rather, the Government

informed the district court that its failure to produce that evidence was the result

of an innocent data entry error made during the check of Marrs’s criminal history;

Varnedore has not even alleged on appeal, much less established, that the

Government’s explanation is false or that its reason for not turning over the

evidence before trial was nefarious. (ROA I at Doc. 30.) When the error was

discovered, the Government immediately notified defense counsel, who then

moved unsuccessfully for a new trial based on the discovery. (ROA I at Doc. 25.)

      Even if the Government had actively suppressed the evidence, however,

Varnedore’s challenge would still fail under the third prong of Brady because the

evidence of Marrs’s criminal history was not material. For the evidence of

Marrs’s prior conviction to be material, “there must be a reasonable probability

that, had the evidence been disclosed to the defense, the result of the proceeding

would have been different. A ‘reasonable probability’ is a probability sufficient

to undermine confidence in the outcome.” Scott v. Mullin, 303 F.3d 1222, 1230

(10th Cir. 2002) (internal quotation marks and citations omitted). Our review of

the record leads us to conclude, as did the district court, that there is not a




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reasonable probability that disclosure of Marrs’s bank fraud conviction would

have changed the result of the Varnedore’s trial.

      First, Marrs’s conviction would not likely have been admitted by the

district court even if it had been disclosed to defense counsel. Federal Rule of

Evidence 609(a)(2) allows the admission of prior convictions to impeach a

witness when those convictions, like Marrs’s, were for crimes involving

dishonesty or false statement. But Rule 609(b) states that evidence of such prior

convictions is generally not admissible if more than ten years have elapsed since

the conviction or release from confinement of the witness—which is the case

here. Marrs was convicted for bank fraud in March 1991, sentenced to 10 months

in prison and released on February 6, 1992, more than ten years before

Varnedore’s trial in July 2002. Rule 609(b) contains a caveat that the court may,

despite the ten-year time limit, admit evidence of a prior conviction beyond that

limit if the court “determines, in the interests of justice, that the probative value

of the conviction supported by specific facts and circumstances substantially

outweighs its prejudicial effect.” Nothing in the record, however, leads us to

believe that the district court would have so concluded.

      Even if the district court had admitted the evidence of Marrs’s prior

conviction, there is not a reasonable probability that the result of the trial would

have been different. Marrs was a minor witness who testified that he worked at


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the dealership that sold Varnedore the pickup truck and that no gun was present in

the truck at the time it was sold to Varnedore. (ROA III at 184.) That testimony

was cumulative of testimony given by Robbie Mooney, the salesperson at the

dealership who actually sold the pickup to Varnedore. (Id. at 190–91.) Marrs

was by no means central to the Government’s case; thus, even if his prior

conviction had been admitted, and the jury had discounted his testimony based on

that conviction, we cannot conclude that there is a reasonable probability that its

verdict would have been different. As a result, we reject Varnedore’s Brady

challenge.



IV. Conclusion

      For the foregoing reasons, we AFFIRM Varnedore’s conviction.



                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge




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