United States v. Wayne Doyce McWilliams

liams, way on his to the Assistant U.S. SCHROEDER, Before FLETCHER and Attorney testimony to offer NORRIS, Judges. Wayne. An altercation resulting ensued in charge against Wayne McWilliams for PER CURIAM: investigation, obstruction of a criminal Wayne appeals McWilliams his conviction § U.S.C. § 922(a)(6) under 18 (making U.S.C. a false During the preparation course of for tri- acquisition firearm), statement of a un- al changed attorneys. McWilliams His new § 922(h)(1) der 18 (receipt U.S.C. of a fire- attorney filed a motion to consolidate the felon), by arm a convicted and under 18 charge obstruction with the two firearms § U.S.C. (obstructing a criminal inves- prevailed counts. He on the despite motion tigation). McWilliams raises a number of previous the fact that a consolidation mo- conviction, challenges including by tion filed the Government had been suc- contentions that he had ineffective assist- cessfully opposed by McWilliams’ counsel, ance of that he suffered from vin- counsel. McWilliams was convicted on all prosecution prosecutorial dictive and other three counts after trial. judicial misconduct, finally, felony conviction should have ANALYSIS suppressed ground been on the that his 11. We violated Fed.R.Crim.P. I § jurisdiction note under U.S.C. and we affirm both convictions. Ineffective Assistance of Counsel argues McWilliams that he was

FACTS denied his to a fair trial because his pleaded guilty lawyer incompetent. The standard federal judge competence district court Louisiana to one which we is whether criteria; or argues only counsel’s errors omissions “reflect fail tion that certain skill, judgment Attorneys ure to exercise the or dili U.S. disliked him they because reasonably suspected him gence competent activity. criminal of criminal Al- Fitzharris, attorney.” Cooper though the First Circuit has defense said in dicta personal F.2d part vindictiveness on the charging prosecutor support would discriminatory prosecution, Even if defense claim of coun Bourque, incompetent, granted (1st sel is relief will only prejudiced if his errors sup- the defendant. do not find evidence to here, Id. at 1331. The errors cited on port such claim for the reasons singly collectively,1 which viewed do not evi are discussed connection with requisite incompetence dence the level of McWilliams’ vindicative claim. requisite prejudice nor do we find the prosecution usually Vindictive in McWilliams. retaliatory imposition volves of additional penalties who, against a defendant after II indictment, e.g., legal right, exercises some VindictiveProsecution conviction, to attack his to file a motion to suppress, or to trial. speedy demand a contends McWilliams Groves, United States v. 571 F.2d 450 denying court erred in his motion to dis- Cir.1978); Marco, United v. States De 550 prosecution. miss for Although vindictive denied, (9th Cir.), cert. 434 U.S. pros- McWilliams labels his claim vindictive 827, 105, (1977); 98 S.Ct. 54 L.Ed.2d 85 ecution, appears alleging also to be se- Alvarado-Sandoval, United States v. discriminatory prosecution. lective or Vin- (9th Cir.1977). Nothing F.2d 645 prosecution usually dictive claims arise happened Although filing sort here. of penalized when defendant is for exercise provide initial indictment can the basis statutory of rights by or constitutional charge prosecution, for a of vindictive imposition higher sentence or institu- Hooton, United 628, 662 F.2d charges. prose- tion of increased Selective denied, (9th Cir.1981), cert. 455 U.S. initially cution occurs defendant (1982), 102 S.Ct. 71 L.Ed.2d 873 singled prosecution out for on basis of claim, sustain such the defendant must improper criteria. McWilliams does not part show vindictiveness on the of those have a valid claim of either selective or decision, id. charging who made the prosecution. vindictive showing McWilliams makes no such here. The defendant has the burden of original against The indictment McWil- proving prosecution. selective He must (the counts) liams two was filed (1) similarly demonstrate that others situat by Attorney U.S. James White. It was (2) prosecuted, ed have not been Rodriguez, David the Assistant U.S. Attor- he was selected for on the ba case, ney charge of prosecuting the who ground impermissible sis of an such as allegedly disliked McWilliams. The second race, religion or exercise of the constitu (obstruction justice) action of by was filed Hooton, States v. rights. tional Rodriguez, presented grand but was (9th Cir.1981), cert. de jury by another Attorney. U.S. nied, (1982); Doug United States presented McWilliams no evidence of re- lass, taliatory part Rodriguez. motive on the of prove improper allegation does not selec- He McWilliams makes no the other alleges incompetence gation by 1. McWilliams in his coun- of McWilliams. Each of these actions prompted by sel’s consolidation of the firearms motion for trial counsel could have been charges, strategy. Looking cross-examination of and obstruction counsel’s trial at the record wife, whole, object requisite preju- McWilliams’ and failure to as a we do find the not testimony regarding prior any Government investi- dice in event. prosecutors. allege He does not prosecutor’s questions that either Even if the misconduct, the first or second indictment filed to can be as characterized discourage punish him from or him for misconduct was nonconstitutional error and constitutional, exercising statutory, some does not warrant reversal if it is more right. argues only or common law He probably harmless, Berry, than not certain conduct and statements of U.S. At- possible prejudicial F.2d at 201. The effect Rodriguez prove torney that he was biased alleged judged of misconduct must McWilliams and interested see- the context of the entire Donnelly trial. ing punished. 637, 645, Christoforo, De The complained

Ill misconduct of here was isolated not inflammatory. Given Prosecutorial and Judicial Misconduct weight against McWilliams, of the evidence McWilliams claims misconduct not, probable it was more than prejudic prosecutor denied him a fair trial. At ial.2 threshold, must decide whether mis If conduct occurred. so we look to wheth charges McWilliams also preserved er the issue was prosecutor asking with misconduct for prejudiced whether the misconduct the de police officer, testifying who was as a char Berry, fendant. United States v. McWilliams, acter witness for whether he any had heard investigations criminal 1113, 925, 101 S.Ct. 66 L.Ed.2d 843 McWilliams. The Government claims that (1981). judge The district is in a much question proper the was a method of position prosecutor’s better to evaluate the impeaching police the knowledge officer’s impact. conduct and its proper This court reputation. of McWilliams’ McWilliams did ly accords considerable deference to the object not question to the at trial. The trial court’s view of such matters. court, however, trial objected sponte sua prosecutor

McWilliams cites as and warned the pros- misconduct the that he was questioning risking ecutor’s of agent prosecutor an FBI a mistrial. con- The immedi cerning investigation ately dropped questioning. of this line of The attorney McWilliams. McWilliams’ object- judge’s prompt warning together with later questioning ed judge to the disal- curative weight instructions and the of the inquiry. lowed the The Government ar- evidence compel McWilliams the gües that investigation the was rele- conclusion that allegedly improper the vant why to show how and the questioning, current even if assumed to be miscon charges duct, were filed and denies that the probably was more than not harml prosecutor’s questions improper. were ess.3 alleges apply "plain 2. McWilliams similar the error” standard of review. misconduct whether, prosecutor agent the asked an FBI Berry, United States v. 627 F.2d at 199. This is 1976, investigation because, federal criminal of McWil objection, so in the absence of an the counsel, progress. liams was in ever, Defense how given opportunity trial court is no to correct the object question, did not to the and there and, alleged may error “[t]he defendant not plain applies. fore the error doctrine go allow error to uncorrected and then ask this 193, Berry, court to reverse this conviction.” Id. Where a denied, 1113, 925, 449 U.S. 101 S.Ct. judge recognizes trial error and acts on his or (1981). Assuming arguendo L.Ed.2d that error, justi- her own initiative to correct the the misconduct, question the constituted it was iso "plain fication for review under the error” stan- ambiguous certainly lated not of the inapplicable. dard is es, Under these circumstanc- degree plain prejudice of that would constitute allegation we will review an of error on Giese, 1170, error. United States v. applied under the harmless error rule 979, (9th Cir.), cert. 444 U.S. proper objection cases where has been made. 480, (1979). (indicating See id. circumstances where a fail- object application ure to will not result in Ordinarily, object when counsel fails to standard). plain occurs, error alleged misconduct at the time it charges the contendere. The court refuse to also trial

McWilliams accept plea guilty, of and shall not he men judge with misconduct because accept plea determining the without first discussing the Ninth Circuit tioned the voluntarily is made argues marking exhibits. McWilliams of understanding to, of nature of remark, unobjected which was this charge. If plead a defendant refuses to would be jury the case informed accept plea or if the Court refuses to of caused them to take their appealed and guilty corporation or if a defendant fails argument This is meritless. lightly. duties appear, the Court shall enter a of passing to the An allusion isolated guilty. probably not even alert Ninth Circuit would addition, appeal. jury (1964). Fed.R.Crim.P. 11 indication that if the were there is no provisions The of Rule have since appellate remedy it would aware of the revised, adopted by been and were the Su hasty come to a and ill-considered therefore preme as the validity Court measure of the decision. McCarthy plea in v. United guilty of a States, 394 U.S. 89 S.Ct. IV (1969), and Boykin v. L.Ed.2d Alabama, Rule 11 395 U.S. 89 S.Ct. (1969). L.Ed.2d 274 The standard of full SCHROEDER, Judge. compliance only applies pro with Rule 11 agrees majority panel A Halliday v. United spectively, however. affirmed. the conviction should be argues that his 1964 validity The Rule 11 plea was taken violation of McCarthy entered before suppressed by have should been governing determined the then stan that he was not aware court. He contends Myers, United States v. proof. dards of the maximum he faced before he Thus not advised pleaded guilty, and that question court district of, of, privilege he aware nor was voluntarily whether was made self-incrimination, right trial to understanding charge, with an of the prosecution by jury, or his to confront Munich v. consequences plea. the witnesses. (9th United 337 F.2d Cir. Supreme Court has The United States 1964). cannot maintain a held that a defendant evidentiary The district court held a full upon prior collateral attack a conviction case, hearing in and concluded that the this predicate a for fire- when the conviction is knowing Having was v. arms violations such as these. Lewis the record the district reviewed States, United plea proceeding as the in court as well circuit, (1980). how- L.Ed.2d This Louisiana, agree clearly I that McWilliams ever, attacks held that such collateral has intelligent upon an made choice based en- may convictions be maintained understanding consequences correct decision. to the Lewis tered plea. pleaded guilty, of his At the time he Goodheim, 651 F.2d 1294 (9th v. represented by McWilliams was counsel. Cir.1981). ap- in this I therefore assume Although judge formally did not advise in the trial district court peal, as did the sentence, the McWilliams of the maximum may attack that the collateral proceedings, plead guilty record reflects his choice to be maintained. term, long prison order to avoid a pleaded when McWilliams stated, record,

In prosecutor on the provided guilty, Rule years. In maximum term was ten ex- change plea, plead guilty, not McWilliams received may A defendant and, court, probation, as the district court in this or, nolo with the consent Lewis noted, exactly governs I believe that that was what he bar- case case, and the instant bars McWilliams from gained for. challenging plea, regardless now his 1964 addressing pre-McCarthy guilty pleas, In of the merits of his claim that Supreme Court has held that a invalid when taken. was technically pro of Rule ll’s fall short Although this court has held that Lewis constitutional, yet be if it is visions and retroactively should not be applied to bar a voluntary. Halliday, have been found to charged defendant awith firearms viola- 883, 89 S.Ct. at 1499. No 394 U.S. at collaterally attacking tion from a constitu- showing ritual or on the record particular tionally predicate during infirm conviction Munich, 359; required. 337 F.2d at period express- Ninth Circuit law Pricepaul, v. United States cf. ly permitted predicate reversal if the con- Cir.1976) (9th (holding that the 424-25 overturned, viction could be United States only prove government has to that a Goodheim, (9th Cir.1981), 651 F.2d 1294 voluntary intelligent, state Goodheim’s due process notice rationale that each of the three and need not show inapplicable strikes me as here. expressly brought to when McWilliams violated the firearms by attention and waived the defendant’s statute, the law of the Ninth Circuit was him). adduced The evidence consistent with Lewis: challenge clearly refuted McWilliams’ claim court predicate conviction would affect he did not understand the conse validity subsequent prosecu- Accord Wilkins quences plea. of his Liles, tion. See United States v. Erickson, Cir. (9th Cir.1970) (defendant could be con- 1974). finding court’s The district volun possession despite victed for of a firearm erroneous, clearly tariness was not predicate felony fact that his conviction successfully cannot therefore McWilliams was overturned on for insufficient any maintain that there was evidence). guilty plea. defect his 1964 McHenry Judge Fletcher’s reliance on California, 447 F.2d 470 Conclusion of Liles and to authority undermine the The conviction for violations of 18 U.S.C. support proposition that Ninth Circuit §§ 922(a)(6); 922(h)(1); and 1510 is af- permitted law 1975 a convicted felon to firmed. collaterally constitutionally attack a infirm conviction in the course of a federal fire- NORRIS, Judge, concurring: misplaced. arms seems to me I concur. I find no merits fact, McHenry court considered McWilliams’ claims of ineffective assist violation of firearms statute California’s counsel, prosecution, ance of selective and Liles as an opinion and read interpreting prosecutorial during misconduct the trial. Congressional intent in enacting the Omni- I that we cannot reverse also believe bus Crime Control and Streets Act Safe of upon any McWilliams’ conviction based McHenry 1968—the statute at issue here. challenge might validity raise to the he to contradict Liles’ nothing interpreta- does guilty plea. his 1964 tion Congress of that statute: that intend- made clear Supreme the Court ed that no one felony under taint of a “prohibits that the firearms statute permitted federal possess weap- conviction be to a despite possessing on, a a firearm regardless felon from of the status of that convic- predicate felony McHenry unwilling the fact that the tion. I am to read as on constitution- subject authority proposition Congress to collateral attack for the States, 445 v. United Lewis grounds.” constitutionally enacting al is disabled from 915, 921, L.Ed.2d such statute.1 having difficulty standing McHenry's 1. under- constitutional reach. I am not alone prior predicate McWilliams’ fire- his conviction that is for Because the status of the by any firearms violation because his be affected conviction arms conviction will not pre-Lewis. United States v. Goo- was plea, it seems attack on his 1964 collateral dheim, (9th Cir.1981).1 for determina- me to remand pointless plea the violated then tion whether II. Voluntariness McWilliams’s statutory constitutional prevailing and Guilty Plea. McWilliams’ convic- standards. affirmed. tion should be disagree Judge I with Schroeder’s view that we can determine from the record FLETCHER, concurring Judge, before us that McWilliams’ was know- dissenting: ing Judge Because of Nor- ris’s view that there can be no collateral agree majority’s I with the conclusion conviction, attack on he does not reach claims of ineffective as- that McWilliams’s this issue. counsel, prosecution, selective sistance of misconduct, prosecutorial judicial mis- Judge properly points Schroeder out that hold, however, I conduct lack merit. would the issue in this case is not whether if McWilliams was unaware of complied Louisiana district court with Rule plead- maximum he faced when he accepted 11 when it McWilliams’s guilty, ed or of but whether waived, guilty plea involuntary voluntarily. made Unless is suppressed. must be Because the district voluntarily knowingly, made the con- appropriate court did not make the factual prove viction based on it cannot be used to inquiry, necessary. remand is a firearms violation. See United States v. Pricepaul, (9th Cir.1976). F.2d Attack. Collateral

I. This is true even where the was made agree Judge Supreme I Schroeder Court’s decision in McCarthy v. United defendant can make a collateral attack on facts, i.e., Pricepaul, United.States v. F.2d it to its to convictions held invalid expressed majority because of insufficient evidence. “The clearly McHenry ready distinguishable, some doubt that ly can be broad- believes that Liles is proposition invalidity invalid, prior for the that the aof there ... conviction was held any provision conviction under any ground not on federal constitutional but prevents federal Constitution use of the con- because the evidence was insufficient.” Id. at prove guilt viction to under a firearms statute. Pricepaul, 471. See also United States v. rights infring- Since the federal constitutional however, unspecified, ed in that case were Judge distinguish McHenry Norris would holding is difficult to ascertain how far the ground McHenry concerns violation of should extend. McHenry, a California firearms statute. how- Judge Norris dismisses Goodheim with the ever, interpretation does not involve an remark, process "Goodheim’s due no- offhand Instead, California statute. it holds that the inapplicable here." tice rationale strikes me as permit federal Constitution does not a state to wrong is free He is disregard on two counts. He premise gun charge constitutionally on a in- Goodheim, precedent. which is circuit holding valid Id. conviction. This Liles, reliance on United States v. His applicable equally prosecu- to a federal firearms (9th Cir.1970) proposition for the that Ninth Pricepaul, tion. See 540 F.2d at 421. consistent with Lewis when Circuit law was Judge uncertainty Pricepaul’s Norris notes as possessed gun in 1975 is mis- broadly McHenry to how should be read. But placed. Liles held that the federal firearms stat- uncertainty point there is no on the is applied as a convict- ute to a felon “whose status that, Pricepaul crucial here: the court in held at changed possession, the date of ed felon regardless after minimum, "a state conviction obtained change of status oc- of how that Boykin rights protects in violation of and the language Id. at 20. The above cited curred." may not be used to establish a federal firearms broad, quite Liles has been read sounds narrowly. but violation.” 540 F.2d at 421-22 and n. 3. And California, McHenry In v. uncertainty there is no that Goodheim controls (9th that Liles was this Court held this case. constitutionally inapplicable infirm convic- distinguished by limiting McHenry Liles tions. (1969) (hold penalty of the maximum before he entered 89 S.Ct. guilty plea. his plea reversed ing guilty that a would be automatically unless the trial court com Judge also relies on the fact Schroeder 11) Boykin v. plied Rule or before bargained that McWilliams for and re- Alabama, 395 U.S. 89 S.Ct. probation. ceived Awareness of the sen- (1969) (holding trial promised plea bargain, how- tence under affirmatively disclose that a record must ever, of the does not constitute awareness under defendant entered consequences plea. Even if McWil- Pricepaul, voluntarily). standingly and plead guilty prudent liams’s decision to 422 and n. 3. 540 F.2d at potential penalty, in view of the voluntary intelligent was not or if McWil- plea was not McWilliams contends his penal- unaware of the maximum liams was intelligent at voluntary and because Myers, See ty plea. he when entered his guilty pleaded time he he was unaware policy 451 F.2d at 404. The behind this penalty the maximum for the crime with rule is clear. Even where the defendant is charged, rights and of the he which he was promised pleads a certain sentence if he entering plea. If claim either waived guilty, he he if should know what faces he true, conviction is invalid. is his 1964 right jury chooses instead to exercise his knowledge, trial. Without such the benefit Penalty. A. Maximum uncertain, plea bargain and it would be difficult to contend that the de- voluntary A unless the guilty is not intelligently given up fendant had his fun- aware, plea, at the time of the defendant is exchange damental constitutional im- of the maximum sentence that plea bargain. for the Myers, v. United States posed. In Cir.1972) (9th F.2d 402 this court held that transcript The of McWilliams’ 1964 involuntary if entered 1963 was arraignment reveals that he in- was not the defendant was unaware of the maxi- possible penalties formed of the before he charged. mum for the crime guilty plea. suppression entered his At the hearing gun charges, incident Judge argues that Schroeder McWilliams testified that he was unaware sentencing had sufficient awareness of the pleaded of the sentence he faced he possibilities to render his guilty denying in 1964. the motion to statement, prosecutor’s She relies on the suppress, judge made no find- plea proceeding, the record of the that the ing concerning whatsoever McWilliams’s get maximum McWilliams could term knowledge. I would reverse and remand property years. ten receiving stolen for a determination as to whether McWil- however, prosecutor, The made this state possible liams was aware of the maximum pled guilty. ment after McWilliams had pleaded sentence when he judge than the Although someone other of the maximum can inform the defendant Rights. Waiver Constitutional B. Hamilton, see United penalty, (9th Cir.), pleads guilty, When a defendant he 2846, 56 L.Ed.2d 785 436 U.S. stands as a witness himself and (1978), must be aware of the the defendant entry consents to the of conviction without guilty. range pleads sentencing Brady v. trial. 397 U.S. States, Pilkington v. United 742, 748, 1463, 1468, 25 L.Ed.2d 1963); United States (4th Cir. so, doing he waives three Frontero, Cir. rights: privilege 1971). transcript self-incrimination, trial, of McWilliams’s right The to a pros arraignment that neither the indicates to confront his accusers. Alabama, judge informed McWilliams ecutor nor (1969).2 that a made absent awareness of those S.Ct. rights rights constitutional must Waivers intelligent volun

knowing as well as and Boykin did not create a new constitution- 748, 90 S.Ct. at tary. Brady, 397 U.S. at guilty for the al standard voluntariness of knowingly cannot 1468. A defendant pleas; merely pronounced an automatic rights of intelligently waive constitutional pleas reversal rule for taken without a Hence, which he is unaware. demonstrating record the defendant was awareness of the constitu entered without rights pleaded. aware of these when he George See involuntary. rights is tional States, Brady v. 742, See United U.S. 1299, F.2d United 1463, 4, 747-48 n. 1468 n. denied, (1970). Although the record (1981); 1397, 67 L.Ed.2d 368 retroactive, requirement pre-Boykin is not Sherman, 474 F.2d 305-07 pleas involuntary are unless the defendant (9th Cir.1973). “requisite had the awareness” to enter a Myers, voluntary plea. 451 F.2d at complains that he was nei- recognized requi- 408. This court has of, privilege nor aware of the ther advised knowledge site awareness includes self-incrimination, jury right to three Boykin rights. trial, right to confront or the court, The district instead of witnesses. Pricepaul we specifically noted that taking to determine what McWil- evidence though Boykin retroactive, even was not knew, simply liams held that McWilliams’s prior guilty plea prove could not be used to voluntary intelligent because plea was government a firearms violation unless the probation he would receive he was told Boykin rights voluntarily showed the were proba- plea, return for his and he received intelligently waived. 422- 540 F.2d at tion. 24 and n. 3. See also United States v. Goodheim, (9th Cir.1982); v. Er Wilkins Judge relies on Schroeder Freed, United States v. ickson, (9th Cir.1974) to de to excuse the district court’s failure was aware of termine whether McWilliams Because McWilliams claims that he was Boykin rights pleaded when he the three not aware of the maximum Boykin Wilkins guilty. held that does not pleading guilty, faced in and the constitu- require articulation on the record of the rights tional he waived I remand for would rights waived evidentiary hearing an to determine his Wilkins, Instead, at plea. 763. claims. hearing to the district court hold intelligently if the determine finding Id.

voluntarily made. at 765. however, Wil voluntary,

kins relied on the fact that the state trial only that “Wilkins was not

record showed Boykin, discussed in

aware of the fully consequences of

but was aware of the them.” Id.

waiving at 764. This court has voluntary where the

held that a can be Boykin informed of his

defendant is not record, but it has never held

rights on the retroactive, presume Boykin Boykin Because ven, is not Moss v. Cra- held that a court could govern- privilege self-incrimina- 427 F.2d 139 waiver of tion, trial, right given opportunity prove ment must be to intelligently knowingly record. that McWilliams confront witnesses from silent Alabama, rights. 89 S.Ct. at 1712. waived these 395 U.S. at

Case Details

Case Name: United States v. Wayne Doyce McWilliams

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Feb 2, 1984

Citation: 730 F.2d 1218

Docket Number: 81-1239

Court Abbreviation: 9th Cir.