U.S. v. McWilliams

• Decision Date: 02 February 1984
• Docket Number: No. 81-1239,81-1239
• Citation: 730 F.2d 1218
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Wayne Doyce McWILLIAMS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1218

730 F.2d 1218

UNITED STATES of America, Plaintiff-Appellee, v. Wayne Doyce McWILLIAMS, Defendant-Appellant.

No. 81-1239.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Aug. 9, 1982.

Decided Feb. 2, 1984.

Michael J. Margosian, Fresno, Cal., for defendant-appellant.

James White, Asst. U.S. Atty., Fresno, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California.

Before SCHROEDER, FLETCHER and NORRIS, Circuit Judges.

PER CURIAM:

Wayne McWilliams appeals his conviction under 18 U.S.C. Sec. 922(a)(6) (making a false statement in acquisition of a firearm), under 18 U.S.C. Sec. 922(h)(1) (receipt of a firearm by a convicted felon), and under 18 U.S.C. Sec. 1510 (obstructing a criminal investigation). McWilliams raises a number of challenges to the conviction, including the contentions that he had ineffective assistance of counsel, that he suffered from vindictive prosecution and other prosecutorial and judicial misconduct, and finally, that the prior felony conviction should have been suppressed on the ground that his guilty plea violated Fed.R.Crim.P. 11. We note jurisdiction under 24 U.S.C. Sec. 1291 and we affirm both convictions.

FACTS

In 1964, McWilliams pleaded guilty in federal district court in Louisiana to one count of receiving stolen property, a felony. He received a suspended sentence of two years and three years probation. In 1972, McWilliams, who worked as a bail bondsman and private investigator, applied for a concealed weapon permit in California. In 1975, when he purchased a revolver, McWilliams signed a form stating that he had never been convicted of a crime punishable by imprisonment for a term exceeding one year.

McWilliams' concealed weapon permit was revoked in 1976. He attempted to regain it by seeking a pardon and filing for relief from disability under 18 U.S.C. Secs. 845(b) and 925(c). As a result of the request for relief, a prior investigation of his 1975 firearms form was reopened and McWilliams was charged with making a false statement on receipt of a firearm and receipt of a firearm by a convicted felon, 18 U.S.C. Secs. 922(a)(6) and 922(h)(1).

During a pretrial court appearance on the firearms charges Wayne McWilliams encountered his brother, James McWilliams, on his way to the Assistant U.S. Attorney to offer testimony against Wayne. An altercation ensued resulting in a charge against Wayne McWilliams for obstruction of a criminal investigation, 18 U.S.C. Sec. 1510.

During the course of preparation for trial McWilliams changed attorneys. His new attorney filed a motion to consolidate the obstruction charge with the two firearms counts. He prevailed on the motion despite the fact that a previous consolidation motion filed by the Government had been successfully opposed by McWilliams' prior counsel. McWilliams was convicted on all three counts after jury trial.

ANALYSIS

I Ineffective Assistance of Counsel

McWilliams argues that he was denied his right to a fair trial because his lawyer was incompetent. The standard by which we judge competence is whether counsel's errors or omissions "reflect a failure to exercise the skill, judgment or diligence of a reasonably competent criminal defense attorney." Cooper v. Fitzharris, 586 F.2d 1325, 1330 (9th Cir.1978), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 793 (1979). Even if defense counsel is incompetent, relief will be granted only if his errors prejudiced the defendant. Id. at 1331. The errors cited on appeal viewed singly and collectively, ¹ do not evidence the requisite level of incompetence nor do we find the requisite prejudice to McWilliams.

II Vindictive Prosecution

McWilliams contends that the district court erred in denying his motion to dismiss for vindictive prosecution. Although McWilliams labels his claim vindictive prosecution, he appears also to be alleging selective or discriminatory prosecution. Vindictive prosecution claims usually arise when a defendant is penalized for exercise of statutory or constitutional rights by the imposition of a higher sentence or institution of increased charges. Selective prosecution occurs when a defendant is initially singled out for prosecution on the basis of improper criteria. McWilliams does not have a valid claim of either selective or vindictive prosecution.

The defendant has the burden of proving selective prosecution. He must demonstrate (1) that others similarly situated have not been prosecuted, and (2) that he was selected for prosecution on the basis of an impermissible ground such as race, religion or exercise of the constitutional rights. United States v. Hooton, 662 F.2d 628, 634 (9th Cir.1981), cert. denied, 455 U.S. 1004, 102 S.Ct. 1640, 71 L.Ed.2d 873 (1982); United States v. Douglass, 579 F.2d 545, 550 (9th Cir.1978). McWilliams does not prove improper selection criteria; he argues only that certain U.S. Attorneys disliked him because they suspected him of criminal activity. Although the First Circuit has said in dicta that personal vindictiveness on the part of the charging prosecutor would support a claim of discriminatory prosecution, United States v. Bourque, 541 F.2d 290, 293 (1st Cir.1976), we do not find evidence to support such a claim here, for the reasons which are discussed in connection with McWilliams' vindicative prosecution claim.

Vindictive prosecution usually involves retaliatory imposition of additional penalties against a defendant who, after indictment, exercises some legal right, e.g., to attack his conviction, to file a motion to suppress, or to demand a speedy trial. See United States v. Groves, 571 F.2d 450 (9th Cir.1978); United States v. De Marco, 550 F.2d 1224 (9th Cir.), cert. denied, 434 U.S. 827, 98 S.Ct. 105, 54 L.Ed.2d 85 (1977); United States v. Alvarado-Sandoval, 557 F.2d 645 (9th Cir.1977). Nothing of the sort happened here. Although the filing of the initial indictment can provide the basis for a charge of vindictive prosecution, United States v. Hooton, 662 F.2d 628, 634 (9th Cir.1981), cert. denied, 455 U.S. 1004, 102 S.Ct. 1640, 71 L.Ed.2d 873 (1982), to sustain such claim, the defendant must show vindictiveness on the part of those who made the charging decision, id. McWilliams makes no such showing here.

The original indictment against McWilliams (the two firearms counts) was filed by U.S. Attorney James White. It was David Rodriguez, the Assistant U.S. Attorney in charge of prosecuting the case, who allegedly disliked McWilliams. The second action (obstruction of justice) was filed by Rodriguez, but was presented to the grand jury by another U.S. Attorney.

McWilliams presented no evidence of retaliatory motive on the part of Rodriguez. He makes no allegation against the other prosecutors. He does not allege that either the first or second indictment was filed to discourage him from or punish him for exercising some constitutional, statutory, or common law right. He argues only that certain conduct and statements of U.S. Attorney Rodriguez prove that he was biased against McWilliams and interested in seeing McWilliams punished.

III Prosecutorial and Judicial Misconduct

McWilliams claims that misconduct by the prosecutor denied him a fair trial. At the threshold, we must decide whether misconduct occurred. If so we look to whether the issue was preserved on appeal and whether the misconduct prejudiced the defendant. United States v. Berry, 627 F.2d 193, 196-97 (9th Cir.1980), cert. denied, 449 U.S. 1113, 101 S.Ct. 925, 66 L.Ed.2d 843 (1981). The district judge is in a much better position to evaluate the prosecutor's conduct and its impact. This court properly accords considerable deference to the trial court's view of such matters.

McWilliams cites as misconduct the prosecutor's questioning of an FBI agent concerning a prior firearms investigation of McWilliams. McWilliams' attorney objected to the questioning and the judge disallowed the inquiry. The Government argues that the prior investigation was relevant to show how and why the current charges were filed and denies that the prosecutor's questions were improper.

Even if the prosecutor's questions can be characterized as misconduct, the misconduct was nonconstitutional error and does not warrant reversal if it is more probably than not harmless, Berry, 627 F.2d at 201. The possible prejudicial effect of alleged misconduct must be judged in the context of the entire trial. Donnelly v. De Christoforo, 416 U.S. 637, 645, 94 S.Ct. 1868, 1872, 40 L.Ed.2d 431 (1974). The misconduct complained of here was isolated and was not inflammatory. Given the weight of the evidence against McWilliams, it was more probable than not, not prejudicial. ²

McWilliams also charges the prosecutor with misconduct for asking a police officer, who was testifying as a character witness for McWilliams, whether he had heard of any criminal investigations of McWilliams. The Government claims that the question was a proper method of impeaching the police officer's knowledge of McWilliams' reputation. McWilliams did not object to the question at trial. The trial court, however, objected sua sponte and warned the prosecutor that he was risking a mistrial. The prosecutor immediately dropped this line of questioning. The judge's prompt warning together with later curative instructions and the weight of the evidence against McWilliams compel the conclusion that the allegedly improper questioning, even if assumed to be misconduct, was more probably than not harmless. ³

McWilliams also charges the trial judge with misconduct because he mentioned the Ninth Circuit in discussing the marking of exhibits. McWilliams argues that this remark, which was unobjected to, informed the jury that the case would be appealed and caused them to take their duties lightly. This argument is meritless. An isolated and passing allusion to the Ninth Circuit would probably not even alert the jury to the right of...