U.S. v. Mouling

• Decision Date: 06 March 2009
• Docket Number: No. 05-3206.,05-3206.
• Citation: 557 F.3d 658
• Parties: UNITED STATES of America, Appellee v. Willie J. MOULING, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

557 F.3d 658

UNITED STATES of America, Appellee v. Willie J. MOULING, Appellant.

No. 05-3206.

United States Court of Appeals, District of Columbia Circuit.

Argued December 4, 2008.

Decided March 6, 2009.

Reissued March 27, 2009.

Appeal from the United States District Court for the District of Columbia (No. 04cr00189-01).

Lisa B. Wright, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A.J. Kramer, Federal Public Defender. Neil H. Jaffee, Assistant Federal Public Defender, entered an appearance.

Elizabeth H. Danello, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Jeffrey A. Taylor, U.S. Attorney, and Roy W. McLeese III and Elizabeth Trosman, Assistant U.S. Attorneys.

Before: SENTELLE, Chief Judge, TATEL, Circuit Judge, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge:

Appellant challenges his conviction and sentence on drug and gun offenses, arguing (1) that the district court's use of compound voir dire questions prevented him from learning about possible juror bias; (2) that the district court committed multiple errors in determining his sentence; and (3) that he received ineffective assistance of counsel at trial. Although we have repeatedly expressed our concerns about compound voir dire questions, in this case we are limited to reviewing the district court's actions for plain error, a showing that appellant fails to make. Nor have we any basis for vacating the sentence: appellant's Apprendi claim fails under plain error review, the sentence is reasonable, and appellant points to no evidence that the district court misunderstood its sentencing authority. In keeping with our general practice, however, we remand to the district court for an evidentiary hearing on appellant's ineffective assistance of counsel claims because the trial record does not conclusively show whether appellant is entitled to relief.

I.

The case against appellant Willie Mouling stems from cocaine and a handgun found in a parka abandoned by a suspect who fled from police after having been stopped in connection with a hit-and-run accident. Although never charged with the hit-and-run that originally precipitated the investigation, Mouling was charged with and tried for possession of cocaine base with intent to distribute, 21 U.S.C. § 841, using or carrying a firearm during a drug-trafficking offense, 18 U.S.C. § 924(c), and unlawful possession of a firearm and ammunition by a convicted felon, 18 U.S.C. § 922(g)(1). At trial Mouling's defense centered on a theory of mistaken identity, namely that the police chased a different individual, the owner of the drug- and gun-containing parka, and ended up arresting Mouling instead.

Events leading up to the chase began when D.C. Metropolitan Police Department Officer Seth Anderson responded to the hit-and-run report and interviewed a witness who described the driver as a black male with a slim build, wearing black pants and a black parka with gray fur around the hood. Canvassing the area, Anderson saw an individual matching this description climbing into a parked blue Isuzu SUV. Anderson blocked the SUV with his squad car and questioned the driver. At trial Anderson testified that his encounter with the suspect lasted one to one and a half minutes. Anderson further testified that the individual produced a Virginia driver's license bearing the name Willie Mouling, though a defense witness testified that the person he saw talking to an officer next to the SUV was not Mouling, but rather the owner of the SUV, whom the witness had regularly seen around the neighborhood. Other defense evidence indicated that Mouling drove an Accord, not an SUV.

When Anderson told the suspect that he was investigating a hit-and-run, the suspect became nervous and began reaching into his pockets. Instructed by Anderson to remove his hands from his pockets, the individual fled on foot, managing to slip out of his parka when Anderson tried to grab him. Dropping the parka, Anderson gave chase. The path of the chase was disputed at trial, with Anderson's description of the route differing somewhat from another officer's and from measurements of the area taken by a defense investigator indicating that the path Anderson described was actually blocked by a fence. According to Anderson, he never lost sight of the suspect and remained within fifteen feet of him throughout the chase, which he said lasted less than a minute. In the end Anderson arrested Mouling in an alley behind a neighboring street.

Returning to the vehicles, Anderson retrieved the abandoned parka and discovered a loaded handgun inside. Police also found three "cookies" — two of a white substance and one of a cream-colored substance — in the coat, each in its own plastic baggie. Neither the gun nor the bags yielded usable fingerprints.

Anderson testified that Mouling twice signaled his ownership of the parka by referring to it as "my" coat and by stating in regard to the charges he was facing, "well, you know what's in the coat." On cross-examination, however, Anderson acknowledged that when Mouling first saw the parka after his arrest, he denied it was his. Two of Mouling's neighbors testified they saw him that day wearing a black quilted jacket with no hood, although they acknowledged they had no idea how many coats Mouling owned. Mouling's booking photo showed him wearing a black quilted jacket with a collar but apparently without a hood, and the inventory of his clothing listed a black "jacket," which the government suggests he could have obtained from a family member or a "sympathetic police officer," Appellee's Br. 22.

The jury convicted Mouling on all three counts. Given Mouling's criminal history category of IV, the presentence report proposed a sentencing guidelines range of 168-210 months for drug possession based on a drug quantity of 50-150 grams of cocaine base, plus a 60-month mandatory sentence for using or carrying a firearm. The government requested a 228-month sentence, which reflected the low end of the guidelines range. Because Mouling's trial counsel died in a car accident before sentencing, replacement counsel represented Mouling at sentencing.

The trial court sentenced Mouling to 228 months: 168 months for drug possession and 120 months for gun possession to be served concurrently, and a consecutive 60-month sentence for using or carrying a firearm during a drug-trafficking offense. The trial court also ordered concurrent terms of supervised release: five years for drug possession, three years for firearm use, and two years for gun possession.

Mouling appeals, objecting to the court's conduct of voir dire in selecting his jury, challenging several aspects of his sentencing, and arguing that he received ineffective assistance of counsel at trial. We address each challenge in turn.

II.

We begin with Mouling's challenge to the district court's use of compound voir dire questions. Because we have reviewed this particular district court's voir dire questioning multiple times, we offer only a brief description of the practice. As we explained in United States v. West, 458 F.3d 1 (D.C.Cir.2006), United States v. Littlejohn, 489 F.3d 1335 (D.C.Cir.2007), and United States v. Harris, 515 F.3d 1307 (D.C.Cir.2008), the district court's practice was to ask potential jurors several two-part questions, instructing them to listen to both parts of the question before responding. The first part of the question asked whether jurors had a certain background characteristic or experience, and the second part asked whether in light of that characteristic or experience they thought they would have trouble being impartial. Only if a potential juror would answer "yes" to both parts of the question was she to raise her hand in response. If the answer to either part of the question was "no," the potential juror wasn't to respond at all. For example, the first part of one question asked whether any potential juror or any close family member or friend was "currently or previously employed by any law enforcement agency." Trial Tr. at 58 (Sept. 21, 2004). The district court then listed various organizations that he said qualify as law enforcement agencies, warned the potential jurors not to raise their hands until he asked the second part of the question, and then asked: "As a result of that experience, do you believe that you, you personally would be unable to be fair and impartial to both sides if selected as a juror in this case?" Id. at 58-59. In addition to the law enforcement employment question, the district court posed compound questions on seven other topics: whether any prospective jurors knew each other or had been involved in criminal defense, studied law, served on a grand jury, served on a petit criminal jury, participated in a crime-prevention group, or had been the victim of any crime.

We have previously expressed "deep reservations about [the district court's] compound questions." Littlejohn, 489 F.3d at 1343. As we explained in West, the problem with compound questions is that they "prevent[ ] the parties from learning the factual premise of the first part of the question, relying instead upon the juror's self-assessment of his or her impartiality." 458 F.3d at 10-11. Here, for example, if a potential juror had actually been employed by a law enforcement agency but thought she could nonetheless be impartial, the question format would prevent the parties from learning about and inquiring into the juror's law enforcement background altogether.

In all three of our prior cases, because defense counsel timely objected to the compound questions, we reviewed the conduct of voir dire for abuse of discretion, explaining that reversal was warranted if the court abused its discretion and there was substantial prejudice to the accused. See, e.g., Littlejohn, 489 F.3d at 1342. In West and Harris,...