USA. v. Wilkerson

• Decision Date: 07 December 2000
• Docket Number: No. 00-1538,00-1538
• Citation: 251 F.3d 273
• Parties: (1st Cir. 2001) UNITED STATES OF AMERICA, Appellant, v. CHARLES WILKERSON, Defendant, Appellee. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 273

251 F.3d 273 (1st Cir. 2001)

UNITED STATES OF AMERICA, Appellant, v. CHARLES WILKERSON, Defendant, Appellee.

No. 00-1538

United States Court of Appeals For the First Circuit

Heard December 7, 2000

Decided June 4, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge]

[Copyrighted Material Omitted] Theodore B. Heinrich, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, was on brief, for appellant.

William A. Hahn, with whom Hahn & Matkov was on brief, for appellee.

Before Lynch, Circuit Judge, Stahl, Senior Circuit Judge, and Lipez, Circuit Judge

LIPEZ, Circuit Judge.

On October 29, 1999, a jury found Charles Wilkerson guilty on one count of crack cocaine distribution. Wilkerson's subsequent motion for a new trial was granted. In granting the motion, the district court concluded that it erred in excluding evidence of a prior bad act of the prosecution's informant offered to impeach his credibility. Furthermore, the court concluded that the error was not harmless, primarily because of concerns about the effectiveness of defense counsel during the trial.

After a careful review of the record, we conclude that we must vacate the order granting a new trial. The exclusion of evidence here was unmistakably harmless, and there are no claims of procedural unfairness and no claims of constitutional dimension. Under these circumstances, the new trial order did not meet the requirement of Fed. R. Crim. P. 33 that the order be in the interests of justice, and its issuance was not a proper exercise of discretion.

I.

A. The Charges

We recount the circumstances of the charges in this case in detail because of the importance of the harmless error analysis at trial and on appeal. Charles Wilkerson was initially indicted with thirty other individuals for conspiracy to distribute crack cocaine as members and associates of the Castlegate street gang. The defendant was tried separately. The government elected to proceed only on the two counts of crack cocaine distribution in violation of 21 U.S.C. § 841(a)(1) charged in the indictment. These charges were based upon controlled purchases made at Blue Hill Avenue in Boston. The witnesses in each instance were under the supervision of Drug Enforcement Administration (DEA) agents and officers of the Boston Police Department.

The first alleged sale was on April 30, 1997, involving less than one gram of cocaine. At trial, the jury could not reach a verdict on this count. The second sale on July 8, 1997, involving approximately one ounce of cocaine, was made to cooperating witness Steven Williams, who had an audio transmitter and $400. Williams was enlisted to purchase cocaine from Castlegate gang member Shawn Mells, also known as "Smiles." DEA Task Force Agent Joao Monteiro assisted in the transaction, driving Williams to Blue Hill Avenue and Castlegate Road in an undercover vehicle.

At the time Williams attempted to contact Mells, he initially approached Thomas Hargrove, also known as "Buzz." When Williams asked to arrange a purchase, Hargrove called up to a third floor apartment and told an unidentified female to get "Smiles" or "Chuck" for the transaction. Williams checked in with Monteiro at the undercover vehicle and then proceeded up Blue Hill Avenue with Hargrove. Williams met with the dealer, who was driving a blue Toyota. Although neither Monteiro's observation nor the audiotape of the conversation resulted in an identification of Wilkerson as the individual in the car, Williams identified the dealer as Charles Wilkerson, whom he knew previously and indeed greeted on the audiotape with familiarity, referring to him as "Chuck" during the exchange. "Chuck" indicated that he would return in twenty minutes with the agreed amount of crack cocaine, one ounce in exchange for $800.

Twenty minutes later, Hargrove assured Williams that "Chuck" would come by shortly. When the blue Toyota returned, accompanied by a green Toyota, Williams says he saw the defendant in the green car. He entered that vehicle, and they then drove a couple of blocks to complete the transaction. Monteiro followed in his car. When the purchase was completed, Williams asked how he could contact "Chuck" about future deals. A piece of paper was passed, with the name "Chuck" and two phone numbers written on it. One of these numbers proved to be a cell phone number subscribed to by the defendant. Williams's account of events is corroborated by Monteiro's observation (though he could not identify the defendant), the audiotape of the transaction obtained from the wire worn by Williams, and a videotape of the scene made from a small, concealed camera on the undercover vehicle.

B. The Court's Evidentiary Ruling

Wilkerson's trial began on October 18, 1999, and lasted five days. On count two, Williams was a crucial witness, and the defense's cross-examination involved several exchanges intended to undermine his credibility. First, the defense questioned Williams about his agreement to cooperate with the DEA, and the approximately $12,000 and other benefits he had received over a two-year period for this cooperation. He was questioned about his prior history of dealing drugs; his failure to file income tax returns; and his convictions for assault and battery of a police officer and improper attachment of a motor vehicle plate. Over the objection of the government, the defense also asked him about two default warrants from 1993 and 1994 for failure to return leased property. He acknowledged a conviction on this charge as well. When Williams attempted to explain that this conviction was a mistake, even though it appears on his record, the government asked to approach the bench and objected again.

The court acknowledged the admissibility of prior convictions and open charges against the witness,¹ but asked defendant's counsel where he was going with the default warrants. Counsel stated: "I'm not going at it as prior convictions. I'm going at it as prior instances of dishonest conduct." The court replied: "You can't go at it that way, that is overruled. I thought you were talking about a deal. This is not a deal. You can't have instances of dishonest conduct if it didn't result in a conviction, and if you're going to do it by the conviction route, it has to be certified copies. So this line of questioning, unless it's the appropriate way, is excluded."² Defense counsel then sought permission to inquire about an additional offense, Williams's receipt of stolen property. Noting that it was not clear from the record whether this incident included a conviction, the court said: "[I]t's either a conviction or it's something that was a current deal. You can't just go into prior bad conduct." Defense counsel replied: "Your honor, I think I'm entitled to get into prior instances of dishonest conduct on the witness." The court responded: "I don't agree." Defense counsel made an offer of proof on using the receipt of stolen property charge as evidence of a prior bad act. The court replied:

[Y]ou're not allowed to, that's not appropriate impeachment. To talk about dishonest conduct, you can talk about prior instances of lying, perhaps an instance where someone lied under oath, but you can't just get into a barrage about dishonest conduct. It's not under the rules and that's what we have to go by. So that's excluded.

After this exchange defense counsel continued cross-examination of Williams without further objection.

C. Motion for a New Trial

The defendant filed a motion for a new trial on three grounds: limitations placed on the cross-examination of Williams; the jury's receipt of prejudicial information that the court had excluded from evidence; and the prosecution's innuendo at trial that the defendant was a dangerous individual. Attached to the motion was a copy of the state court complaint relating to the receipt of stolen property charge, which alleges that on August 4, 1992, officers found two stolen car tires resting on the rear bumper of Williams's motor vehicle after receiving a report that a group of males was stealing tires from another vehicle.

In considering the motion, the court only addressed its evidentiary ruling during the cross-examination of Williams. The court said that it had erred in premising its evidentiary ruling on Federal Rule of Evidence 609, relating to prior convictions, rather than Rule 608(b), involving prior bad acts. While noting that defense counsel did not explicitly cite to the appropriate rule, the court acknowledged that it might well have permitted use of the 1992 receipt of stolen property charge for impeachment.

We quote from the court's bench ruling at length to show the court's concern about the effectiveness of counsel at trial, and the interplay of that concern with its harmless error analysis:

[T]he government's brief very effectively goes through all the things that I allowed Mr. Palmer [defendant's counsel] to get into in the examination of Steven Williams. And, in fact, one could conclude that it's harmless error. I'm not sure that I do. And so I went back over the whole trial.

And part of the problem here is that evaluating where this fits in the whole trial, let me first say a couple of things.

I was troubled by the level of preparation of counsel in this case. Whether it rises to ineffective assistance of counsel, I don't know. But I certainly was troubled by that.

I was troubled when, on the fourth day of trial, when I asked, have you been to the scene, been to where the building from which the surveillance took place, the answer was no. And, yet, you were asking for a view, which would have been a blind view. . . .

And I was troubled by the implication that - I mean, on the very first day of trial you hadn't realized that there was going to be a police officer who was going to testify that he recognized Wilkerson, not just - not just a...