76 F.3d 393
UNITED STATES of America, Plaintiff-Appellee,
Richard BREATH, Defendant-Appellant.
United States Court of Appeals, Tenth Circuit.
Feb. 2, 1996.
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Before BALDOCK, SETH, and BRORBY, Circuit Judges.
ORDER AND JUDGMENT*
SETH, Circuit Judge.
Appellant Richard Henry Breath was convicted on a single count of being a felon in possession of a firearm, a violation of 18 U.S.C. 922(g)(1). Appellant raises two issues on appeal.
First, Appellant challenges the propriety of the Master Jury Wheel for the Denver division, from which Appellant's petit jury was selected. Appellant contends that the district court should have granted his motion to stay the trial, pursuant to 28 U.S.C. 1867(d), because the court clerk failed to substantially comply with the Jury Selection and Procedure Act, 28 U.S.C. 1861-1869.
The Government concedes that the clerk erroneously determined county proportionality based on numbers that did not accurately reflect the number of registered voters in several counties within the Denver division.
The errors affecting Denver's petit Master Jury Wheel are discussed at length in United States v. Bailey, 862 F.Supp. 277 (D.Colo), in which the district court concluded that the clerk's errors did not amount to a substantial failure to comply with the Act. We affirmed the district court's denial of Bailey's motion to stay the trial proceedings against him in United States v. Bailey, No. 95-1004, --- F.2d ---- (10th Cir.). Because Appellant's claim is identical to Bailey's challenge to Denver's petit Master Jury Wheel, we incorporate by reference the pertinent portions of our discussion in Bailey to conclude that the district court properly denied Appellant's motion to stay the trial.
Second, Appellant contends that the district court abused its discretion in responding to a question from the jury during the jury's deliberations and in refusing the jury's request of a written copy of a certain jury instruction. After a thorough review of the record, we conclude that the district court acted within its discretion in both instances.
For the foregoing reasons, we AFFIRM.
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