U.S. v. Robinson

• Citation: 967 F.2d 287
• Decision Date: 15 June 1992
• Docket Number: 90-10470,Nos. 90-10433,s. 90-10433
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Willard Cortez ROBINSON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 287

967 F.2d 287

UNITED STATES of America, Plaintiff-Appellee, v. Willard Cortez ROBINSON, Defendant-Appellant.

Nos. 90-10433, 90-10470.

United States Court of Appeals, Ninth Circuit.

Argued on Sept. 18, 1991.

Opinion Filed April 22, 1992.

Opinion Withdrawn May 12, 1992.

Resubmitted May 29, 1992.

Decided June 15, 1992.

Scott L. Tedmon and Clifford E. Tedmon, Tedmon & Tedmon, Sacramento, Cal., for defendant-appellant.

Frank C. Meyer, Sp. Asst. U.S. Atty., Sacramento, Cal., for plaintiff-appellee.

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

Before: ALARCON, BOOCHEVER, and NELSON, Circuit Judges.

BOOCHEVER, Circuit Judge:

Willard Cortez Robinson appeals his conviction for possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1), use of a firearm during the commission of a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1), and being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He contends that the federal prosecution of his case violated his due process rights, that he received ineffective assistance of counsel, and that the district court erred in denying a continuance of trial. He also claims that there was insufficient evidence for his conviction for possession of cocaine, that the

district court erred in computing his sentence, and that he was denied his right to his originally appointed appellate counsel. ¹

BACKGROUND

Information was received that Robinson, a parolee at large, was dealing in drugs. On April 8, 1988, while investigating another parolee, parole officers searched a motel room in Pinole, California, which was registered to Robinson. The officers found 407.92 grams of cocaine and evidence suggesting drug trafficking activity. On August 17, 1988, based on further information regarding Robinson's drug dealings, parole officers conducted a parole search at an apartment in Sacramento which Robinson had rented since May 12, 1988, under an assumed name. Robinson and Estella Thompson were present during the search. After searching the apartment, the officers seized two guns, ammunition, 158.2 grams of cocaine in a cereal box, 12.5 grams of cocaine base, and $2,800 in cash in a man's jacket. They arrested Robinson.

On April 7, 1989, Robinson was charged in a four-count indictment with (I) possession of cocaine base with intent to distribute, (II) possession of cocaine with intent to distribute, (III) use of a firearm during commission of a drug trafficking offense, and (IV) being a felon in possession of a firearm. The case was set for jury trial. The district court continued the trial date on two occasions. Robinson relieved one appointed counsel and caused the second appointed counsel to withdraw from representation by filing a malpractice suit against him.

Robinson then retained the services of Kapp Nees. Upon approval from the court, Nees continued the trial date to March 26, 1990. The court denied Nees' second request to continue the trial date. Subsequently, Robinson fired Nees for failing to secure defense witnesses and proceeded to represent himself in pro per. The court denied Robinson's request for a continuance.

On March 29, 1990, the jury convicted Robinson of counts II, III, and IV. The court appointed Carl Larson to represent Robinson for sentencing. After the district court evaluated Robinson's objections to the Presentence Report (hereinafter PSR), it added the 407.92 grams of cocaine found in the Pinole search, to the 158.2 grams of cocaine seized in Sacramento to compute Robinson's base offense level of 26. ² Furthermore, the district court found that Robinson's criminal record qualified him as a career offender, resulting in an offense level of 34. Robinson's criminal history points were computed to be 14, which led to a criminal history category of VI. The Sentencing Guidelines range for Robinson's offenses was 262 to 327 months imprisonment. Furthermore, 18 U.S.C. § 924(c)(1) mandated a 60-month consecutive prison term for use of a firearm during a drug trafficking crime. The court sentenced Robinson to a term at the top of the Guideline range, plus the 60-month mandatory consecutive term, in order to arrive at a total term of 387 months imprisonment. The court also sentenced Robinson to a five-year term of supervised release.

DISCUSSION

I. Due Process of Federal Prosecution

Robinson argues that filing this case in federal court was a violation of his right to be charged in the court system of original jurisdiction. In this case the California Department of Corrections Parole Officers conducted the parole search resulting in Robinson's arrest. The case was subsequently referred to the United States Attorney's Office for prosecution. Because this issue was not raised in the court below, we review for plain error. See Fed.R.Evid. 103(d); United States v. Hernandez, 876 F.2d 774, 777 (9th Cir.), cert. denied Robinson claims that because this case originated as a state parole search, it should have stayed in the state court system. Robinson cites United States v. Williams, 746 F.Supp. 1076 (D.Utah 1990), aff'd in part and vacated in part, 963 F.2d 1337, (10th Cir.1992), for support. Williams held that referral for federal prosecution was improper because the police officers within an intergovernmental strike force exercised unfettered discretion as to which cases to refer for federal or state prosecution. Id. at 1081. That court reasoned that due process required an objective policy to govern such referral decisions. Id. at 1083.

Y493 U.S. 863, 110 S.Ct. 179, 107 L.Ed.2d 135 (1989).

We find Robinson's claim unpersuasive for several reasons. First, the Tenth Circuit has rejected this part of the district court's holding in Williams on appeal. See Williams, 963 F.2d at 1341-42. In doing so, the Tenth Circuit relied upon United States v. Andersen, 940 F.2d 593 (10th Cir.1991), which rejected the proposition that due process required written policies to guide decisions regarding referral for federal prosecution. Id. at 596-97.

Second, subsequent to the submission of the instant case, our court has joined the Tenth Circuit and other sister circuits in holding that, absent limited exceptions which are inapplicable here, due process is not violated by the referral of cases for federal rather than state prosecution. United States v. Nance, 962 F.2d 860, 864-65 (9th Cir.1992) (per curiam). See also United States v. Parson, 955 F.2d 858, 873 n. 22 (3rd Cir.1992) (referral of drug charges for federal prosecution did not violate due process); United States v. Allen, 954 F.2d 1160, 1165-66 (6th Cir.1992) (same); United States v. Carter, 953 F.2d 1449, 1461-62 (5th Cir.1992) (same). Here, Robinson's case was referred to the United States Attorney's Office for review and prosecution, and we must assume that the United States Attorney exercised proper discretion to prosecute in federal court. Accordingly, we find that Robinson's due process rights were not violated by the referral of his case to federal prosecutors or by their decision to prosecute.

Moreover, in United States v. Nance, 962 F.2d at 865, we have recently stated:

Further, even if we detected a due process violation, recent decisions of this court would require us to hold that absent proof of discrimination based on suspect characteristics, we may not review charging decisions made by prosecutors. See [United States v.] Redondo-Lemos, [955 F.2d 1296] at 1300-01 [(9th Cir.1992) ]; United States v. Diaz, 961 F.2d 1417, 1420 (9th Cir.1992) ("although a defendant has a due process right to be free of arbitrary or capricious charging decisions, there is no judicial remedy to correct such violations").

II. Ineffective Assistance of Counsel

Robinson claims that Nees was incompetent in his representation because he failed to investigate the case properly, to file a timely motion for continuance, to confer with his client to elicit matters of defense, to obtain defense witnesses for trial, and to advise Robinson to file motions under Fed.R.Crim.P. 29 and 33. Robinson also contends that his attorney was unfamiliar with federal criminal procedure and practice.

Generally, ineffective assistance of counsel claims are more properly raised by collateral attack on the conviction under 28 U.S.C. § 2255. United States v. Schaflander, 743 F.2d 714, 717 (9th Cir.1984), cert. denied, 470 U.S. 1058, 105 S.Ct. 1772, 84 L.Ed.2d 832 (1985). Such claims, however, may be reviewed on direct appeal in two instances: 1) when the record on appeal is sufficiently developed to permit review and determination of the issue, United States v. Anderson, 850 F.2d 563, 565 (9th Cir.1988), or 2) when the legal representation is so inadequate that it obviously denies a defendant his Sixth Amendment right to counsel, United States v. Rewald, 889 F.2d 836, 859 (9th Cir.1989), cert. denied, --- U.S. ----, 111 S.Ct. 64, 112 L.Ed.2d 39 (1990).

Here, the record on appeal is not sufficiently developed to permit review and resolution

                of the issue.   Nees knew of possible defense witnesses, but on the date of the trial he had interviewed only one witness.   On the other hand, Robinson did not provide Nees with the witnesses' names until two weeks before trial.   Additional facts must be developed to determine whether Nees took proper steps to investigate the case before trial and to determine the extent of Robinson's cooperation with Nees.   Therefore, we hold that Robinson's claim of ineffective assistance of counsel may be only raised by collateral attack
                

III. Denial of Continuance

Robinson argues that the district court erred in denying a continuance of his trial. Nees had requested a continuance, but this request had been denied. Robinson moved the court to relieve Nees as his attorney of record. Robinson claims that by denying Nees' motion for a continuance, the district court forced him either to go to trial with an unprepared attorney...