United States of America,plaintiff-Appellee v. David Daniel Thomas Wilkerson, Opinion

during aggravating the commission bery conviction is reversed for lack of suf- evidence). Id. at Although element.” 1197. circum- However, ficient because we stantial evidence be used prove any “can have concluded that sufficient evidence fact,” (quoting id. v. supports Defendant’s for conviction un- Cir.1990)), Stauffer, 922 F.2d robbery, armed bank with accordance government presented evi- insufficient express request relief, Defendant’s for we prove dence to that Defendant knew vacate his sentence and remand to the Ferguson had, or or in- either Johnson district court for resentencing under 18 use, gun tended to or either of them 2113(a) § § U.S.C. 2. See during to use violence the bank intended Jones, 592 F.2d at 1042 (remanding for robbery. 2113(a) resentencing under where there support was insufficient evidence to trial,

At none of the witnesses defendant’s for conviction armed bank rob- robbery testified credit union that Defen- 2113(d)).2 bery under present dant when either Ferguson was or injured or Johnson used a victim. Ferguson, gov-

Even who testified for the CONCLUSION ernment, did not state that Defendant reasons, foregoing For the Defendant’s had, knew that he and Johnson or intended conviction for armed robbery bank is RE- use, guns during violence the rob- VERSED. Defendant’s sentence VA- is bery. Ferguson testified that Defen- CATED. The case REMANDED with dant understood that his role “run was to instructions to enter conviction for un- grab around and up money” while robbery armed bank and to resentence Ferguson “got everybody’s Johnson accordingly. Defendant however, government, attention.” The testimony Ferguson failed to elicit from

regarding whether Defendant how knew

Ferguson and going Johnson were

“g[e]t everybody’s attention.” Additional-

ly, although Ferguson testified that he had day

been armed the robbery, entire testify did not that Defendant knew Indeed, that he had been so armed. there America, UNITED STATES of was testimony Ferguson and Johnson Plaintiff-Appellee, kept guns away from Defendant. Accord- ingly, hold that we insufficient evidence WILKERSON, David Daniel Thomas presented at Defendant’s bench trial Defendant-Appellant. to support his conviction for bank armed robbery. No. 98-50504. Because there insufficient evi United States Court of Appeals, supporting dence Defendant’s conviction Ninth Circuit. robbery,

for bank armed his for conviction must Argued offense be reversed. re On and Submitted Oct. mand, government may retry De April Filed fendant armed robbery. bank See Jones, (holding 592 F.2d at 1042 that the jeopardy

double bars retrial clause under 211.3(d) when a defendant’s rob- armed appeals argument Defendant also Be- sentence. dant’s that the district court erred disposition cause of our calculating Defendant's evi- his sentence for armed bank claim, dentiary we Sentencing need address Defen- under the Guidelines. Public Tanaka, Deputy Federal

Michael California, de- for Defender, Angeles, Los Thomas Daniel David fendant-appellant Wilkerson. United Cardona, Assistant

George S. Peterson, C. and Carole Attorney, States An- Attorney, Los States United Assistant California, plaintiff-appellee geles, of America. Count two charged the defendants with union, armed of a credit in viola- 2113(a)(d). tion of -18 U.S.C. Count charged three the defendants with using or carrying a firearm during a crime of violence, FLETCHER, 924(c). in violation of § Before: D. NELSON, W. U.S.C. BRUNETTI, and Judges. Circuit § The charge was added after Judge Keller' criticized the Opinion by Judge NELSON; D.W. initial failure to charge Wilkerson for car- by Dissent FLETCHER. rying a weapon during the robbery’s com- Though mission. he admitted carrying a NELSON, D.W. Circuit Judge: gun, Wilkerson initially only charged David Daniel Thomas appeals Wilkerson for armed robbery conspiracy. and At an his conviction guilty conditional plea to initial status conference on February one count of armed bank under 18 1998, after ascertaining the basic facts of 2113(a)(d) § U.S.C. and one count for use case, the following colloquy place took or carrying of a firearm during the com- in which Judge Keller noted the omission: mission of a crime of violence under 18 The you Court: Do have gun a count in 924(c). § U.S.C. here? government: The sorry? I’m I. Factual and Background Procedural The Why Court: you don’t have a The stem from an incident 924(c)? just curious, I’m from a appellant Wilkerson, where along with two charging standpoint. co-defendants, stole a and vehicle then government: The honor, Your at this robbed Edwards Federal Credit Union point guns were hot recovered. Lancaster, in California on December The Court: So what? That leads me to On December law enforce- the example of officers, somebody, you ment Wilkerson, interviewed who know, just I’m going to rob banks confessed his role in the robbery, and ad- next to a- ocean, lake or next to the mitted gun carrying during the of- and when I get through, goes there fense. lake, in goes there it originally charged on .Wilkerson ocean, government is January 1998, with co-defendant, one not going to charge me with a under a two-count indictment consisting 924(c), because we didn’t recover one count of conspiracy in violation of 18 gun. is, And the answer so § U.S.C. 371 and one count of armed rob- what? You’re' not telling you me bery aof federal credit union in violation try drugs cases without drugs, don’t 2113(a)(d). § of 18 U.S.C. A superseding you? indictment was filed shortly thereafter, government: The true, your That’s hon- charging all three of the alleged co-con- or. spirators with the two counts set forth in Okay. The Court: you So are telling me the original indictment. On March (cid:127) you don’t try gun cases without government filed a second su- guns? perseding indictment, which also added a The I’m going Court: you to tell some- charge for using or carrying a firearm thing. you Do see the ineonsisten- during a crime of violence in violation of 18 cy? 924(c). § U.S.C. Count charged one Wilk- government: Yes, erson your and two co-defendants Honor. conspir- with ing to commit a robbery of a federal credit The Court: a major There is inconsis- union, in violation of 18 U.S.C. tency there. 455(a) states that Court in the later A bit “[a]ny justice, judge magistrate government’s failure on the commented disqualify shall himself United States referring to charge, include the any impartiality in which “asinine,” proceeding as “absurd” omission- might reasonably questioned.” be. “[R]e- your him to with “[s]hare told a judicial marks in context demon [must] criminal [the] [division].” head of prejudice bias and pervasive strate such 13, 1998, filed a Wilkerson On March [they] par against ] bias constitutef Keller, Judge to recuse formal motion Court, King Dist. ty.” Judge dis- claiming that Keller’s asserted (9th Cir.1994). test initially pleasure with person with reasonable knowl “whether Keller omitting Judge rendered the all the facts would conclude that edge of impartial. be to biased unable might reasonably judge’s impartiality the Byrne, Judge who referred to motion was Hernandez, 109 F.3d at questioned.” 16, 1998, stating that it March denied on 1453, Studley, States v. 783 quoting United fac- requisite the failed to make Wilkerson (9th Cir.1986). 934, Applying the F.2d 939 showing of bias. tual Hernandez, in we do set forth standard rose to Judge inquiry find that Keller’s motion to dismiss also filed a Wilkerson 28 required level for recusal under Judge contending that charge, 455(a), in of particularly light govern- essentially had forced the Keller he admission that carried own Wilkerson’s This charge. to file the motion ment “A robbery. judge’s weapon during a 16, Judge on March by Keller also denied may issues not serve as the legal views on day, That same Wilkerson reached to disqualify.” for motions basis eventually pled agreement, and plea a (9th 869, 624 Conforte, v. F.2d 882 robbery the armed guilty to Cir.1980). v. also United States See right charges, expressly reserved but (9th Cir.1996). Bauer, 1549, 84 F.3d 1560 appeal the denied recusal dismissal to subsequently charge motions. He of that the dis Wilkerson maintains armed 63 months for the sentenced to itself in the improperly trict court inserted for the and to 60 months count vio charging decisions and by of years five gun charge be followed of doctrine. powers lated the ap- supervised release. Wilkerson now that review of the record indicates Our recusal and peals the denial of has failed demonstrate both Wilkerson a review so extreme motions to dismiss. After careful court’s behavior was the trial record, inability to render affirm the district a “clear display the entire we so as to States, Liteky judgment.” motion for v. United court’s denial Wilkerson’s fair 1147, 114 127 S.Ct. count. 510 U.S. recusal and dismiss (1994). formed “[Ojpinions 474

L.Ed.2d facts intro by judge on basis II. Discussion occurring the course duced or events court’s deci We review a district ... do not consti proceedings the current grant a motion for recusal sion whether to motion partiality basis for a bias or tute a an of discretion. United States favorit they display deep-seated abuse unless (9th Hernandez, 109 1453 fair v. that would make antagonism ism Cir.1997). at-555, also a motion to Id. 114 judgment impossible.” We review preserve judicial Judge Keller’s commen dismiss an indictment to 1147. While S.Ct. standard, potential logical it is incon integrity tary as focused on the under same of supervi sistency of but not both charging of the court’s one an exercise district fenses, high degree it not reveal such v. Garza-Jua did sory powers. United States (9th Cir.1993). fair antagonism as make rez, favoritism or 992 F.2d 905 judgment impossible. Liteky Indeed, ment].”). Similarly, a judge who express recusal). quire See also United States v. es doubts about the particular merits of a Frias-Ramirez, (9th F.2d 670 853 n. 6 Noli, case is not delinquent. 860 F.2d at Cir.), denied, cert. 459 U.S. 103 S.Ct. Judge While Keller’s commentary (1982) (“Parties 74 L.Ed.2d 86 cannot may active, have demonstrated an perhaps judge’s attack a impartiality the basis of engagement abrasive case, with each side’s information and acquired beliefs while act it cannot be as partial characterized so or ing in judicial his or her capacity.”). The biased to warrant “Cutting reversal. com undisputed supported evidence judge’s the counsel, ments to particularly those relat inquiry. ing to skill rather good than faith integ rity, will not generally Nor do mandate reversal.” Judge we find that Keller invad Pau Co., v. Yosemite Park Curry and government’s ed the province in this case. (9th Cir.1991). F.2d may itWhile be true “courts should wary of second-guessing prosecutorial We respectfully disagree with the dis- Miller, 722 choices,” United sent’s conclusion trial court invad- Cir.1983), the record demon ed separation powers between the Judge strates that explicitly Keller recog judicial executive and branches. The dis- nized that charging decisions are within position sent’s the governance understates purview when he in standard, the Hernandez and overstates quired about the for the reasons omission the concern separation powers. We 924(c) § of the charge. Indeed, Judge cannot carve a statutory violation from Keller inquired also about govern policy concerns may It alone. be true that ment’s charge failure to the defendants prosecutorial decisions are rarely reviewed count, with a carjacking but the govern by courts, see United States v. Armstrong, ment never added At no point one. did 456, 464, 517 U.S. 116 S.Ct. force, require or coerce the (1996), L.Ed.2d 687 but we do not think 924(c) file a charge. Moreover, at the that this can case be characterized as an initial status Judge Keller re invasion of province. this sacred The car- peatedly emphasized to the defendants riage gun of a during the commission of n thecrime that he was not the fact finder or- the issue, was and at the trial prosecutor, noting that the defendants had commentary court’s correctly exposed the “every right to go trial jury and have a logical inconsistency present in failing to determine this.” already for an admitted offense. to the level Hernan- erroneously conflates a rise dissent Liteky, displeasure with “assum dez and then it cannot be said that judge’s asserted provision The two are prosecutor.” violated. ing the role is accept same. former not the While conclude, upon based the rec We able, mere expres the latter is not. The us, that ord before Wilkerson has failed to prosecutor’s with a displeasure sion William D. Keller Judges demonstrate itself, not, by does con charging decisions Byrne William M. abused and their discre an of the invasion stitute tion in denying Wilkerson’s motions re- us, facts From the before some powers. Judge cuse Keller and to dismiss the 18 before a thing more coercive needed charge. rises level of an judge’s behavior to the AFFIRMED. Here, we remain convinced that invasion. ensuring involved in Judge Keller was FLETCHER, Judge, dissenting: Circuit put comprehensive side forth its each most I respectfully dissent. would vacate that the was an undis case. fact plea sen- agreement defendant’s and element of the crime’s commission puted remand, allowing the tence and would Judge it understandable that Keller made Attorney to and re-indict ask, upon, perhaps would comment bring reconsider what without charge. omission judge’s hanging Sword of Damocles Similarly, the court’s commen necessarily require over him. This would tary “representing] on his role as disqualifying judge. also community community” principle There is a fundamental is- guns of armed does “tired” require- sue. The structural constitutional “truly the ex not demonstrate kind powers ment that be careful- that are recu- treme” remarks ly has in this maintained been violated Borrero-Isaza, See States v. United sal. Supreme in explained case. the Court As (9th Cir.1989) (“[t]he 1349, F.2d 1357 887 456, Armstrong, 517 United v. U.S. States feelings a a judge strong fact that has on 134 L.Ed.2d 687 S.Ct. automatically does not particular crime (1996), rarely prosecutorial decisions are sentencing him those disqualify from who by courts such a review: reviewed because crime”); have committed judicial power to asks a court exercise Nelson, 315, 321 v. 718 F.2d States “special province” over a the Execu- Cir.1983)(court’s belief that defendant Attorney and United tive. The General presid from disqualify did not him guilty Attorneys retain “broad discre- Allen, retrial); over ing criminal tion” to enforce the Nation’s (9th Cir.1980)(state F.2d They this latitude because laws. have marijuana was “a importing ment as the designated are statute they crime that had a ‘eancer’-like very serious help him dis- delegates to President’s society” was “nowhere near the effect responsibility charge constitutional ethnic, apparent political, per sort faithfully Laws to “take Care that the recusal). warranting sonal animus” To result, a presump- “[t]he executed.” As disqualify judge, alleged the bias must prose- regularity supports” tion their and deep- “animus more active constitute (citations omitted) ... cutorial decisions disapproval to rooted than an attitude of dis- protect prosecutor’s The to the persons certain their need ward because in strict rules on se- Conforte, 624 cretion has resulted known conduct.” and limits on prosecution If lective claims1 881. the district court’s behavior does See., de- Armstrong, prosecution arises after e.g., lective claim United States v. showing the U.S. (1996) 116 S.Ct. 134 L.Ed.2d 687 fendant threshold makes (entitlement discovery under to a se- judicial the participation review of and you your tell about people.” I don’t plea-bargaining.2 Prosecutors are afford- it practice Instead, make to do that. I ed broad discretion over decisions inves- here, you right tell you’re doing not tigate,3 plea bargaining,4 to allow to deter- job, my the view. mine bring charges,5 whether to and to Id. at 40. bring.6 decide what subsequent conference, In a after the case, In this the district judge asked government brought had in a superseding pointed questions why about the defendant adding indictment an 18 U.S.C. had not charged specific been with a of- count, judge again explained his view fense. then offered a of his role as “represent[ing] the communi- explanation reasoned why as to it had not ty,” and that in this role he has observed gun charge included a in the indictment that “We’re tired of armed bank robbery. (that recovered). guns had not been We’re tired guns. We don’t want them press issue, continued to anymore; you do understand me? No literally brow-beating prosecutor, call- guns.” more Reporter’s Transcript at ing policy “absurd” and 9,1998. March He added: “asinine,” instructing prosecutor Now, prosecutor when a charge, files your “[s]hare that with head of Criminal.” which charge here, was set forth which Reporter’s Transcript at Feb. implicates guns, does in my but Toward the end of the status view, track Congress; the will of name- judge explained how he saw his role in ly, you’re when charging guns, you charging process: also, you’re charging The last case I that somebody had a(d) 2113(d) count, you charged a — raised havoc with me on the—the defen- 924(c). they it, When don’t do they dant I did—’that was all over prose- itdo with some frequency, you, I’ll tell know, you cutor. But I judge, as they it, when don’t do want to know think I do have protect some role to why they are not doing it. dog- You’re society. if I And think prosecutor gone right ... I’m off; not backing doing abysmal job, an I do believe I’m okay? my job That’s ... able to comment on it. I’m going

go pick phone up, judges as some only I wish prosecutor’s office had in days gone by, have call the head enough of sense to charge appropriately. the Criminal say, “Hey, Division and Then I don’t get have to involved. I Division, head of the Criminal I want to just would like to sit back here.... prosecute similarly has failed to prosecutorial claim of vindictiveness neces- races). suspects limited). situated of sarily other 2. Hayes, In Bordenkircher v. 434 U.S. See, Sustaita, e.g., 4. United States v. 1 F.3d (1978), S.Ct. 54 L.Ed.2d 604 the Court (9th Cir.1993) (decision to allow or held that process there was no due violation preclude plea bargain prosecutor’s within dis- when prosecutor threatened to indict the cretion). charges defendant guilty on more serious if a plea forthcoming. was not Discussing its rea See, Williams, e.g., 5. United States v. 504 U.S. soning, the system, Court noted that our "[I]n 36, 48, 112 S.Ct. 118 L.Ed.2d 352 long so prosecutor probable as the has cause (1992) (prosecutor's ability to seek indictment to believe that the accused committed an of grand jury independent from any judicial is statute, fense defined the decision whether authorization). prosecute, not to and what to file or bring grand juiy, generally before a rests en See, States, e.g., 6. Hunter v. United 73 F.3d tirely in his discretion.” Id. at 98 S.Ct. (9th Cir.1996) curiam) (when (per proscribes more than one statute the conduct See, Martinez, e.g., issue, United States v. 785 F.2d charges prosecu- choice of is left to (9th Cir.1986) (court’s discretion). review of tor's Rule motions. rule on here and sit Just LABOR RELATIONS NATIONAL on the instruc- Rule the evidence. on Petitioner, BOARD, earnestly thing. one

tions, say and at the job to look my it is believe failing, is a say, if there and to Union, Automo International here ... on going what’s Agricultural Im bile, Aerospace and just sits here when And if a Court (UAW), plement America Workers thinking, mind- my way prosecutor, No. Local Amalgamated Union that, 2113(d), if lessly charges Petitioner-Intervenor, AFL-CIO, here, my judge, judge just sits job. doing his view, is not unequivocally STRETCHFORMING ADVANCED you if Because judge. it hang up, Just INC., INTERNATIONAL, you then shouldn’t passive, are Respondent. my That’s view. position. in that No. 97-71047. at 10-13. Id. Appeals, Court in an court appellate puts the This case Ninth Circuit. very limited play a We position.

awkward of dis- the conduct role supervisory over 13, 1999 April Argued and Submitted acutely I am aware judges. trict court 4, 2000 April Filed However, my review of limitations. our that no measures me persuades record can this case what I recommend short system of of our integrity

maintain constitutionally preserve

justice powers. principally majority focuses biased, but that judge

whether be.7 focus should principal

not where prosecutor. role of judge assumed unequivocally stated times

He several job to see that

his role—his —was it was charged properly,

prosecutor do so

necessary for him—the —to community.” “protect the protect the constitu- Exercising duty to majority that because 7. The rationalizes defendant, suggest, rights of the tional similarly inquisitive col- "engaged however, not, required. It is proper but status the initial loquy with the defense role of judge to conference,” 796), proper for the assume proved this Op. at (Maj. prosecutor. other. one side biased toward was not notes the record reveals Judge “expressions dissatisfaction', impatience, engaged Keller also in a similarly inquisi annoyance, and anger, even tive colloquy are within with the defense at the initial status imperfect thereby bounds of what . discounting men /. possibility that he was biased display” ordinarily sometimes towards one fail to estab side or the other. Instead actively in partiality. lish bias or Id. See also Unit vading prosecutor’s discretion, Monaco, the rec ed States v. 852 F.2d ord shows that (9th Keller (comments Judge was remark Cir.1988) by judge reflect ing potential ing outrage at crime and parties failure of may overlooked, have way the same responsibility to take did not demonstrate pressured the defendants to utilize ev bias); pervasive Ins., Yagman Republic ery possible pretrial strategy to their ad (9th Cir.1993)(recusal 987 F.2d vantage. Parks, See Gonzales v. 830 F.2d though judge even and law (9th Cir.1987). (“There is noth yer “clashed” repeatedly); and Noli v. ing inherently improper about a sugges C.I.R., Cir.1988) 860 F.2d tion that a party should file a (comments by judge revealing that he was particular motion summary [for judg with a conduct upset party’s did hot re

Case Details

Case Name: United States of America,plaintiff-Appellee v. David Daniel Thomas Wilkerson, Opinion

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Apr 3, 2000

Citation: 208 F.3d 794

Docket Number: 98-50504

Court Abbreviation: 9th Cir.