United States v. Dwain D. Williams

509 F. App'x 899

11th Cir.

2013

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Docket

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. Dwain D. WILLIAMS, Defendant-Appellant.

No. 11-10658.

United States Court of Appeals, Eleventh Circuit.

Feb. 15, 2013.

899-903

keep. Hamze also averred that he had filed a grievance about being injured in September 2008 after officers placed him in a cell with an inmate who was violent and knew Hamze’s victim, but Hamze’s grievance complained only of being “placed with other inmates ... in violation of [his] protective custody” and did not mention an assault or being incarcerated with a particular inmate. See Brown v. Sikes, 212 F.3d 1205, 1207 (11th Cir.2000). Hamze also failed to file that grievance within five days of the alleged assault, as required by the jail procedures, see Johnson v. Meadows, 418 F.3d 1152, 1157 (11th Cir.2005), and he did not appeal to the jail administrator after being denied relief by a member of the staff. Hamze argues that compliance with jail procedures would have been futile and the officers received actual notice of his grievances during an internal affairs investigation, but Hamze knew of and was required to “comply with the grievance procedures established by [the jail] before filing a federal lawsuit under section 1983,” Miller v. Tanner, 196 F.3d 1190, 1193 (11th Cir.1999).

The district court did not abuse its discretion when it denied Hamze’s first and second motions for leave to amend his complaint. The district court reasonably determined that Hamze’s proposed amendments would unfairly prejudice the officers. See Technical Res. Servs., Inc. v. Dornier Med. Sys., Inc., 134 F.3d 1458, 1463 (11th Cir.1998). Hamze’s first motion sought to add an additional four officers and six unknown officers of the jail and South Florida Reception Center based on six allegations of assault and endangerment unrelated to the claims in his original complaint. Hamze’s second motion sought to add another five officers of the jail based on six more alleged incidents of endangerment and falsification of an incident report. Hamze filed his second motion on the day before the deadline expired to amend the pleadings and complete discovery, and after the district court had twice extended the deadline at Hamze’s request. And Hamze failed to explain why he had not included the allegations of his proposed amendments in his original complaint.

The district court also did not abuse its discretion when it denied Hamze’s motions for appointment of counsel. Hamze’s case did not involve any “exceptional circumstances justifying appointment of counsel.” Fowler v. Jones, 899 F.2d 1088, 1096 (11th Cir.1990). Hamze witnessed the incidents about which he complained; his facts and issues were not novel or complex; and he had filed coherent pleadings, obtained extensions of time, and responded timely to rulings by the district court. Hamze sought assistance to retain and interview an expert witness to explain his injuries, but his injuries were relatively easy to describe.

We AFFIRM the dismissal of Hamze’s complaint.

John Alexander Romano, USDOJ, Criminal Div., Appellate Section, Mi Yung Claire Park, U.S. Department of Justice Criminal Division, Washington, DC, Michelle Lee Schieber, Michael J. Moore, U.S. Attorney, U.S. Attorney’s Office, Macon, GA, James N. Crane, Leah E. McEwen, U.S. Attorney’s Office, Albany, GA, for Plaintiff-Appellee.

Ingrid Driskell, Albany, GA, for Defendant-Appellant.

Dwain D. Williams, Tucson, AZ, pro se.

Before TJOFLAT and COX, Circuit Judges, and MOTZ,^* District Judge.

PER CURIAM:

Dwain D. Williams was convicted in the Middle District of Georgia of three offenses: traveling in foreign commerce and engaging in illicit sexual conduct, in violation of 18 U.S.C. § 2423(c), (e) (count one); aggravated sexual abuse of a child committed while accompanying the Armed Forces outside the United States, in violation of 18 U.S.C. §§ 2241(c) and 3261(a)(1) (count two); and abusive sexual contact with a child committed while accompanying the Armed Forces outside the United States, in violation of 18 U.S.C. §§ 2241(a) and 3261(a)(1) (count three). The conduct alleged in the indictment occurred in and around Okinawa, Japan. Subject matter jurisdiction for counts two and three was based upon the Military Extraterritorial Jurisdiction Act of 2000 (“the MEJA”), 18 U.S.C. §§ 3261-3267.¹

I.

The evidence, the sufficiency of which is not contested on appeal, established that Williams was married to a member of the United States Air Force. While his wife was stationed in Okinawa, Williams engaged in sexual conduct with his stepdaughter, A.F., having vaginal intercourse with her. On one occasion he also performed oral sex on her, and he occasionally touched her breasts when penetrating her. Williams and his family lived in three different residences while they were in Japan, two of them located on the air base and one located off the base, in the city of Koja. Williams’ wife was eventually transferred to an Air Force base located in Georgia. While Williams was in Afghanistan working as a civilian, A.F. told her mother and other family members about the sexual abuse to which she had been subjected. When Williams returned to Georgia he was arrested and prosecuted.

II.

Williams contends that the MEJA is unconstitutional because it subjects to criminal prosecution in the United States conduct that was committed outside the territorial or special maritime or admiralty jurisdiction of the United States.

In Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957), the Supreme Court held that civilian dependents of members of the armed forces could not be convicted of capital offenses by a court-martial conducted under the provisions of the Uniform Code of Justice. The Court ruled that in such a prosecution the defendant’s constitutional right to be charged by an indictment returned by a grand jury, guaranteed by the Fifth Amendment, and her constitutional right to a jury trial, guaranteed by Article III and the Sixth Amendment, were violated. Id. at 32, 77 S.Ct. 1222. In Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 80 S.Ct. 297, 4 L.Ed.2d 268 (1960), the Court extended the holding in Reid to non-capital offenses. However, in Kinsella the Court

contemplated the extension of federal criminal jurisdiction over civilian defendants as an alternative to a court-martial proceeding. 361 U.S. at 246, 80 S.Ct. 297 (“[T]he immediate return to the United States permanently of such civilian defendants, or their subsequent prosecution in the United States for the more serious offenses when authorized by the Congress, might well be the answer to the disciplinary problem.”).

The MEJA does not violate a defendant’s right to be charged by an indictment or his right to be tried by a jury. Under the MEJA a defendant is prosecuted in the United States in a criminal court and is afforded the constitutional rights afforded by Article III and the Fifth and Sixth Amendments. Williams was indicted by a grand jury and convicted by a petit jury. Williams argues, however, that the MEJA nevertheless is unconstitutional under the venue provision of the Sixth Amendment and the compulsory process provision of the Sixth Amendment. Neither contention is meritorious.

The Sixth Amendment provides that crimes which have been committed within a state and district shall be tried there. U.S. Const. amend. VI. However, Article III contemplates that offenses against the laws of the United States may be committed somewhere other than in a state and that in such cases “the Trial shall be at such Place or Places as the Congress may by Law have directed.” U.S. Const. art. III, § 2. Congress has exercised the authority granted to it by Article III by providing in 18 U.S.C. § 3238 that “[t]he trial of all offenses begun or committed upon the high seas, or elsewhere outside of the jurisdiction of any particular State or district, shall be in the district in which the offender ... is arrested or is first brought.” It is undisputed that Williams was arrested in the Middle District of Georgia, and his prosecution in that district therefore was consistent with the dictates of both § 3238 and the Sixth Amendment’s venue provision.

The Sixth Amendment also provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have compulsory process for obtaining witnesses in his favor.” U.S. Const. amend. VI. Williams contends that the district court’s lack of subpoena power over foreign nationals residing outside the United States renders the MEJA unconstitutional because it deprives defendants such as Williams of their right to have the court compel the testimony of favorable witnesses. To prove a compulsory process violation, however, a defendant must make a “plausible showing” that the witness’s testimony “would have been both material and favorable to his defense.” United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982). As the district court noted, Williams made “no attempt ... to name any witness who would be material and favorable to his defense, let alone any showing by [Williams] regarding said witness’s materiality and favorability.” Williams therefore has failed to establish any violation of the Sixth Amendment right to compulsory process.

III.

The final issue on appeal is whether the district court imposed an improper general sentence. “A general sentence is an undivided sentence for more than one count that does not exceed the maximum possible aggregate sentence for all the counts but does exceed the maximum allowable sentence on one of the counts.” United States v. Woodard, 938 F.2d 1255, 1256 (11th Cir.1991). General sentences are per se illegal in this circuit and require a remand. United States v. Moriarty, 429 F.3d 1012, 1025 (11th Cir.2005). The maximum sentence permissible under 18 U.S.C. § 2423(c), upon which count one is based, is thirty years. The district court’s undivided sentence of life imprisonment followed by a lifetime period of supervised release therefore exceeded the maximum allowable sentence on the first count and constituted an impermissible general sentence, and the United States agrees that the case should be remanded for correction of the sentence. Accordingly, we vacate the sentence and remand the case for clarification of the sentence, including the term of supervised release, applicable to each count of which Williams was convicted. See United States v. Martinez, 606 F.3d 1303, 1304 (11th Cir.2010) (stating that 28 U.S.C. § 2106 “unambiguously grants the circuit courts broad discretion to fashion an appropriate mandate on remand after the vacatur of a sentence”).

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

Notes

18 U.S.C. § 2423(c) defines the crime on which count one is based and also provides the court with subject matter jurisdiction to adjudicate that charge. Williams does not expressly dispute the constitutionality of that statute. Williams’ Sixth Amendment arguments are equally applicable to all three counts, however, and our analysis of Williams’ challenges to the MEJA also applies to 18 U.S.C. § 2423(c).

Honorable J. Frederick Motz, Senior United States District Judge for the District of Maryland, sitting by designation.

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