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Date: 03-10-2018

Case Style:

United States of America v. David Robert McFarland

Western District of Oklahoma Federal Courthouse - Oklahoma City, Oklahoma

Case Number: 17-6143

Judge: Monroe G. McKay

Court: United States Court of Appeals for the Tenth Circuit on appeal from the Western District of Oklahoma (Oklahoma County)

Plaintiff's Attorney: Edward J Kumiega

Defendant's Attorney: Robert L Swartz and Kyle E Wackenheim

Description: David McFarland appeals the district court’s order revoking his supervised
release pursuant to 18 U.S.C. § 3583. He contends that he was denied his right of
cross-examination at the preliminary hearing and that the evidence was insufficient to
support the criminal allegations underlying the revocation. We dismiss the first
argument for lack of jurisdiction and affirm on the second.
I. Background
In September 2013, Mr. McFarland was convicted of being a felon in
possession of a firearm and sentenced to 37 months’ imprisonment, followed by three
years’ supervised release. Two of the conditions of his supervised release were that
he not commit another crime and that he not associate with any person engaged in
criminal activity. He began his supervised release in September 2016. In May 2017,
the United States Probation Office sought to revoke his release based on his attempt
to steal a local farmer’s Polaris Ranger ATV.
The Polaris Ranger was kept in a pole barn, where the farmer stored hay. The
pole barn had a roof, two walls, and moveable panels erected to keep cattle out of the
barn. On May 11, 2017, the farmer noticed that his Polaris Ranger had been moved
and the key was not in its hiding place. Therefore, he and three friends staked out the
barn that night, with the farmer in the barn armed with a rifle, two of the friends in a
pickup truck near the locked gate to the property, and the third in a pickup truck
along the road. At about 1:00 a.m. Mr. McFarland and one Jared Fuller drove up to
the locked gate in a pickup truck pulling a trailer. Using bolt cutters, one of them cut
the lock on the gate to the property. Then both men walked to the barn and began to
unpin the panels. The farmer shouted at the men to stop, they took off running, and
the farmer fired three or four warning shots. Mr. McFarland ran back to his truck and
drove away. The farmer fired another shot at the truck, intending to shoot the front
The farmer’s friends followed Mr. McFarland along the road, where a police
car fell in behind the McFarland pickup truck in response to a call about a shooting.
The officer activated his lights and sirens, but Mr. McFarland did not pull over, nor
did he speed or turn off his headlights. The officer followed him to his grandfather’s
residence where the officer arrested Mr. McFarland.
Mr. McFarland was charged in state court with burglary in the second degree,
eluding/attempting to elude a police officer, malicious destruction of property, and
trespassing. The government relied on these charges, as well as an additional charge
of associating with another in engaging in crime, to seek revocation. A magistrate
judge conducted a preliminary hearing and determined that the witnesses did not need
to appear in person. At the conclusion of the hearing, the magistrate judge held that
the government had established probable cause and bound Mr. McFarland over for a
final revocation hearing. A district judge held a final revocation hearing at which the
farmer, one of his friends, the arresting police officer, and a probation officer
testified. Mr. McFarland’s attorney cross-examined all witnesses. The district court
found that all of the charged violations were established by a preponderance of the
evidence. Consequently, the court revoked Mr. McFarland’s supervised release and
imposed a sentence of 14 months’ incarceration to be followed by an additional
12 months’ supervised released.
II. Standards of Review
“We review the district court’s decision to revoke supervised release for abuse
of discretion. Legal questions relating to the revocation of supervised release are
reviewed de novo.” United States v. Jones, 818 F.3d 1091, 1097 (10th Cir. 2016)
(internal quotation marks omitted).
III. Denial of Cross-examination at Preliminary Hearing
Mr. McFarland contends the magistrate judge’s failure to require the
appearance of the witnesses at the preliminary revocation hearing where they could
be subjected to cross-examination ran afoul of Jones and Fed. R. Crim. P.
32.1(b)(1)(B)(iii). Jones held that a “balancing test applies when determining a
releasee’s confrontation rights at a revocation hearing,” and noted that the test
applies to preliminary revocation hearings. 818 F.3d at 1099 & n.5. The test asks
“whether the interest of justice does not require the witness to appear by balancing
(1) the person’s interest in the constitutionally guaranteed right to confrontation
against (2) the government’s good cause for denying it.” Id. at 1099-1100 (internal
quotation marks omitted).
Even if the magistrate judge’s failure to apply the balancing test was error, we
conclude that this issue is moot. To show Article III standing, a litigant must
demonstrate “(1) an injury in fact; (2) a causal connection between the injury and the
challenged action; and (3) a likelihood that a favorable decision will redress the
injury.” Ind v. Colo. Dep’t of Corr., 801 F.3d 1209, 1213 (10th Cir. 2015) (internal
quotation marks omitted). “[A] case becomes moot when a [claimant] no longer
suffers actual injury that can be redressed by a favorable judicial decision.”
Id. (internal quotation marks omitted).
Mr. McFarland acknowledges that he was able to confront and cross-examine
the witnesses at the final revocation hearing. Nevertheless, he relies on one of the
exceptions to the mootness doctrine—“the issue is deemed a wrong capable of
repetition yet evading review,” id. (internal quotation marks omitted). He contends
that this is an issue that may never come before the court in a posture warranting a
This exception requires two showings for a claimant to meet his burden to
establish that the wrong is capable of repetition yet evading review: “(1) the
challenged action was in its duration too short to be fully litigated prior to its
cessation or expiration, and (2) there is a reasonable expectation that the same
complaining party will be subjected to the same action again.” Id. at 1215 (brackets
and internal quotation marks omitted). Mr. McFarland has made no showing, nor
does he claim, that he will again be charged with revocation of his supervised release.
Therefore, he has failed to establish the second element, a failure that is fatal to his
argument. See id. at 1216 (holding failure to establish second element is dispositive).
Consequently, any ruling by this court would be an impermissible advisory
opinion. See Golden v. Zwickler, 394 U.S. 103, 107 (1969) (“The federal courts
established pursuant to Article III of the Constitution do not render advisory
opinions.” (brackets and internal quotation marks omitted)). Because this claim is
moot, we lack jurisdiction and dismiss the claim. See Ind, 801 F.3d at 1211.
IV. Sufficiency of the Evidence
Mr. McFarland asserts that the evidence was insufficient to establish that he
violated the conditions of his supervised release. A district court may revoke a
defendant’s supervised release if it “finds by a preponderance of the evidence that
[he] violated a condition of supervised release.” 18 U.S.C. § 3583(e)(3).
Mr. McFarland was charged with second degree burglary pursuant to
Okla. Stat. tit. 21, § 1435, which provides:
Every person who breaks and enters any building or any part of any
building, room, booth, tent, railroad car, automobile, truck, trailer, vessel or
other structure or erection, in which any property is kept, or breaks into or
forcibly opens, any coin-operated or vending machine or device with intent
to steal any property therein or to commit any felony, is guilty of burglary
in the second degree.
He maintains that the pole barn does not come within the statutory definitions of a
structure so he was not guilty of this crime.
The pole barn in this case is similar to the lumberyard held to qualify as an
“other structure” under the statute in Stanley v. State, 512 P.2d 829, 832
(Okla. Crim. App. 1973). Like the fence around the lumberyard in Stanley, the
moveable panels on the pole barn in this case were “erected mainly for the purpose of
protecting property within [their] confines and [were], in fact, an integral part of a
closed compound.” Id. (internal quotation marks omitted). Therefore, their function
was “analogous to that of a ‘building’” and the moveable panels “constitute[d] a
‘structure’ subject to being burglarized.” Id. (internal quotation marks omitted).
Thus, the evidence was sufficient for the district court to find by a preponderance of
the evidence that Mr. McFarland violated the second-degree burglary statute.
Next, Mr. McFarland claims the evidence was insufficient on the charge of
eluding/attempting to elude a police officer. Okla. Stat. tit. 21, § 540A(A), provides
as follows:
A. Any operator of a motor vehicle who has received a visual and audible
signal, a red light and a siren from a peace officer driving a motor vehicle
showing the same to be an official police, sheriff, highway patrol or state
game ranger vehicle directing the operator to bring the vehicle to a stop and
who willfully increases the speed or extinguishes the lights of the vehicle in
an attempt to elude such peace officer, or willfully attempts in any other
manner to elude the peace officer, or who does elude such peace officer, is
guilty of a misdemeanor.
Mr. McFarland points out that he did not increase his speed or extinguish his
vehicle lights. But he does not claim that he obeyed the officer’s lights and siren.
Instead, he drove to his grandfather’s residence. Because § 540A(A) applies to one
who simply eludes a police officer, we conclude that the evidence was sufficient for
the district court to find by a preponderance of the evidence that Mr. McFarland
violated this statute.1
Mr. McFarland also challenges the sufficiency of the evidence on the charge of
malicious destruction of property. This charge was based on cutting off the lock
1 Mr. McFarland cites Oklahoma Uniform Jury Instruction—Criminal 6-29 to
support his argument that he did not attempt to elude the officer. But in accordance
with Oklahoma law, the jury instruction does not differ from the statute. See Mitchell
v. State, 2016 OK CR 21, ¶ 24, 387 P.3d 934, 943 (“Trial courts should use the
uniform jury instructions if they state the applicable law.” (internal quotation marks
securing the farmer’s gate, in violation of Okla. Stat. tit. 21, § 1760(A)(1). He
contends that the evidence established only that he was one of two people involved in
cutting off the lock. The farmer testified that he saw two people through his rifle’s
night-vision scope. R. Vol. 3, at 64. He saw both people at the lock. After they cut
the lock, they unchained the gate and it swung open. Id. at 66. He did not, however,
see which individual actually cut the lock. Id. at 93.
Under Oklahoma law, “[a]ll persons concerned in the commission of
crime, . . . whether they directly commit the act constituting the offense, or aid and
abet in its commission, though not present, are principals.” Okla. Stat. tit. 21, § 172.
“[O]nly slight participation is needed to change a person’s status from a mere
spectator into an aider and abettor.” Conover v. State, 933 P.2d 904, 910
(Okla. Crim. App. 1997), abrogated on other grounds by Bosse v. Okla., 137 S. Ct. 1
(2016). Even if Mr. McFarland did not actually cut the lock, he was aware that
Mr. Fuller had cut it. Cf. id. at 911 (observing that the defendant “was aware that
fatal blows were being delivered [by another] to the victim”). In addition, he was
present during the process and he went through the gate after the lock and chain had
been removed. Thus, the evidence was sufficient for the district court to find by a
preponderance of the evidence that Mr. McFarland violated § 1760(A)(1).
Mr. McFarland further asserts that the evidence was insufficient on the
trespassing charge. The applicable statute states:
A. Whoever shall willfully or maliciously enter the garden, yard, pasture or
field of another after being expressly forbidden to do so or without
permission by the owner or lawful occupant thereof when such property is
posted shall be deemed guilty of trespass . . . . For purposes of this section,
“posted” means exhibiting signs to read as follows: “PROPERTY
TRESPASSING”; or similar signs which are displayed. Property that is
fenced or not fenced must have such signs placed conspicuously and at all
places where entry to the property is normally expected.
Okla. Stat. tit. 21, § 1835(A). Mr. McFarland contends that the sign posted at the
gate in question was not conspicuous because it was a single sign that was bent
around a pole and angled to one side.
The parties have not cited a case addressing what is required for a sign to be
conspicuous as contemplated by the statute, and we have found none. We have
considered the exhibits showing the no-trespassing sign in question. We conclude
that the evidence was sufficient for the district court to find by a preponderance of
the evidence that Mr. McFarland violated § 1835(A).
Finally, Mr. McFarland briefly asserts that he was not on notice to defend
against the charges. Although he relies on United States v. Mullane, 480 F. App’x
908 (10th Cir. 2012), he has not attempted to show that he was denied the minimum
protections due a defendant in a revocation hearing identified in Mullane See id.
at 910.

Outcome: Mr. McFarland’s claim that he was denied his right of cross-examination at the
preliminary hearing is dismissed for lack of jurisdiction. The district court’s
judgment is affirmed in all other respects.

Plaintiff's Experts:

Defendant's Experts:


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