United States v. Wallace , 82 F. App'x 701 ( 2003 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-1405
UNITED STATES,
Appellee,
v.
NICKOYAN WALLACE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, Senior U.S. District Judge]
Before
Torruella, Circuit Judge,
Campbell, Senior Circuit Judge,
and Selya, Circuit Judge.
Nickoyan Wallace on brief pro se.
Margaret E. Curran, United States Attorney, and Donald C.
Lockhart, Assistant U.S. Attorney on brief for appellee.
December 11, 2003
Per Curiam. Nickoyan Wallace has appealed the
district court's denial of his pro se motion, filed during the
pendency of his direct criminal appeal, that was purported to
be filed pursuant to Fed. R. Civ. P. 60(b) and sought to vacate
his criminal conviction. Neither the district court nor the
government remarked on the obvious proposition that Rule 60(b)
of the Federal Rules of Civil Procedure is an inappropriate
procedural vehicle to vacate a criminal conviction. In any
event, the motion was correctly denied.
Wallace contends that he was not present at a
discussion that occurred during trial among the trial court,
government counsel and his own defense counsel. Even assuming
that Wallace was not present, Wallace points to the inference
in the record of this discussion, but then proffers nothing
(for example, an affidavit of his counsel) to rebut the
government's explanation (also record-based) that the
discussion concerned the taking of a recess in order to get
Willie Preston, an incarcerated government witness, into the
courtroom and Preston's restraints removed without Preston's
restraints being seen by the jury. We are thus left with this
unrebutted conclusion regarding the substance of the prior
discussion.
"[A] defendant is guaranteed the right to be present
at any stage of the criminal proceeding that is critical to its
-2-
outcome if his presence would contribute to the fairness of the
procedure." Kentucky v. Stincer, 482 U.S. 730, 745 (1987). He
has a right to be present "whenever his presence has a
relation, reasonably substantial, to the fulness of his
opportunity to defend against the charge" and "to the extent
that a fair and just hearing would be thwarted by his absence."
Snyder v. Massachusetts, 291 U.S. 97, 105-06, 108 (1934).
Wallace's attendance at the discussion concerning the use of a
recess to bring Preston into the courtroom had no reasonably
substantial relation to the fullness of his opportunity to
defend against the criminal charges of robbery of a gun shop
and related firearms offenses and a fair and just hearing on
those charges was not thwarted by his absence. See United
States v. Oles, 994 F.2d 1519, 1525 (10th Cir. 1993) (defendant
failed to establish that his presence at an administrative
conference, at which potential retained counsel informed court
that he would not be representing defendant, would contribute
to the fairness of the overall proceeding and defendant's
absence from this conference did not impinge on defendant's
opportunity to defend against criminal charge); United States
v. Shukitis, 877 F.2d 1322, 1329-30 (7th Cir. 1989)
(defendant's presence at conferences concerning alleged
violations of court's witness sequestration order would not
have aided the court in its determination of any violation and
-3-
his absence did not affect his ability to defend against the
criminal drug charges).
Wallace's remaining claims of error in the admission
of Preston's testimony are meritless. His claim of a violation
of the mandate of Massiah v. United States, 377 U.S. 201(1964), was adjudicated adversely to him in his direct criminal
appeal and may not be relitigated. See United States v.
Wallace, 71 Fed. Appx. 868, 2003 WL 21982022 (1st Cir. Aug. 21,
2003) (unpublished). And, his claim of error in the admission
of Preston's testimony as a result of judicial bias is patently
frivolous.
Affirmed.
-4-