United States v. Wallace , 71 F. App'x 868 ( 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Not For Publication in West's Federal Reporter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. 02-1429
UNITED STATES OF AMERICA,
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
Selya, Circuit Judge,
Stapleton* and Baldock,** Senior Circuit Judges.
Jon R. Maddox, by appointment of the court, for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Margaret E. Curran, United States Attorney, and Stephanie S.
Browne, Assistant United States Attorney, were on brief, for
appellee.
August 21, 2003
_______________
*Of the Third Circuit, sitting by designation.
**Of the Tenth Circuit, sitting by designation.
Selya, Circuit Judge. On October 18, 2000, a federal
grand jury sitting in the District of Rhode Island returned a four-
count indictment against, inter alia, defendant-appellant Nickoyan
Wallace. The indictment charged him with the robbery of a gun shop
(count 1); conspiring to commit the robbery (count 2); theft of
firearms from a federally-licensed firearms dealer (count 3); and
brandishing a firearm during and in relation to a crime of violence
(count 4). See 18 U.S.C. §§ 1951, 922(u), 924(c)(1)(A)(ii). The
appellant's first trial resulted in a hung jury. Upon retrial, a
second jury convicted him across the board.
The district court sentenced the appellant to a 120-month
incarcerative term on the first three counts (the top of the
applicable guideline sentencing range) and imposed a consecutive
sentence of 84 months on count 4. This appeal followed.
We will not tarry. We have reviewed the record with
care. That appraisal reveals not only overwhelming evidence of the
appellant's guilt but also the absence of reversible error. Since
the questions presented are straightforward, it would be pointless
for us to write at length. We will, however, comment on each of
the appellant's four assignments of error.1
1. The appellant complains that the district court, at
sentencing, erroneously imposed a two-level enhancement for
1
There is also a fifth ground of appeal: a claim of
cumulative error. That claim requires no discussion.
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obstruction of justice (and, thus, effectively increased his
sentence). We discern no error.
An enhancement under USSG §3C1.1 is proper when a
defendant intentionally provides false testimony concerning a
material matter. See United States v. Villarman-Oviedo, 325 F.3d
1, 16 (1st Cir. 2003); United States v. Rowe, 202 F.3d 37, 43 (1st
Cir. 2000). Because this determination is inescapably factbound,
appellate review is for clear error. United States v. Cash, 266
F.3d 42, 44 (1st Cir. 2001); United States v. David, 940 F.2d 722,
739 (1st Cir. 1991). Thus, the district court's finding of
obstruction can be set aside only if whole-record review leaves us
with the "definite and firm conviction that a mistake has been
committed." United States v. U.S. Gypsum Co., 333 U.S. 364, 395
(1948).
In this instance, the district court zeroed in on the
appellant's attempt to distance himself from a cell phone that the
robbers had left at the scene of the crime. The court found in
pertinent part:
There's no question that the defendant
committed perjury during this trial. He lied
bald faced lies and he was thoroughly
impeached by the prosecutor. He created a
fictitious man. This James Coleman didn't
exist. The prosecutor completely devastated
him on cross-examination concerning the use of
that cell phone that was left behind. . . .
And that is an attempt to obstruct justice.
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Taken in context, this excerpt makes clear the district court's
thinking that both the cell phone incident and the appellant's
invention of "James Coleman" were simply examples of how far he was
willing to stretch the truth.2 The more fundamental point is that
the court believed — supportably — that the appellant testified
falsely when he denied having anything to do with the robbery or
the stolen guns. The jury necessarily rejected the appellant's
testimony in rendering its verdict and there can be no serious
question as to the testimony's materiality. Under these
circumstances, the district court did not commit clear error in
determining that the appellant provided materially false testimony.
See, e.g., Villarman-Oviedo, 325 F.3d at 16.
2. The appellant next argues that his jailhouse
confession to a fellow inmate, Willie Preston, should not have been
allowed as a part of the government's case in chief. There are two
problems with this argument. First, the issue was never raised
2
In all events, there was ample evidence that James Coleman
did not exist and that the appellant invented him. The trial
evidence revealed that the appellant used the cell phone in
question almost every day during the month leading up to the
robbery, undercutting any claim that the phone belonged to the
mysterious Coleman. The most that the appellant can possibly hope
to show is that the record supports conflicting inferences
concerning whether Coleman really existed and was the true owner of
the cell phone. That dooms the appellant's quest, for the
sentencing court's choice between plausible alternative inferences
cannot be clearly erroneous. United States v. Ruiz, 905 F.2d 499,
508 (1st Cir. 1990).
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below (and is, therefore, forfeit).3 See Young v. Lepone, 305 F.3d
1, 13 (1st Cir. 2002) (observing that "[i]f any principle is
settled in this circuit, it is that, absent the most extraordinary
circumstances, legal theories not squarely raised in the lower
court cannot be broached for the first time on appeal."); United
States v. Slade, 980 F.2d 27, 32 (1st Cir. 1992) (similar).
Second, Preston's testimony was properly admitted. At the time of
the conversation, Preston had no prearrangement with the
government, and, indeed, had never heard about either the appellant
or the gun shop robbery. Thus, the confession was not obtained in
violation of the rule announced in Massiah v. United States, 377
U.S. 201 (1964). We explain briefly.
Massiah holds that a defendant is denied the basic
protections of the Sixth Amendment when his own incriminating words
are deliberately elicited from him post-indictment by a federal
agent, in the absence of his counsel, and then used against him at
trial. Id. at 205-06. Thus, a successful Massiah objection
requires a defendant to show, at a bare minimum, that the person
with whom he conversed had previously been enlisted for that
purpose by the authorities. United States v. LaBare, 191 F.3d 60,
65 (1st Cir. 1999). In the case of a jailhouse informant, the
person must have been instructed both to focus on, and actively to
3
Indeed, the government claims, albeit without supporting
authority, that the point is waived. See Fed. R. Crim. P. 12(h).
We need not decide that point.
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elicit information from, the defendant. Id. at 64-65. Here, the
informant (Preston) had no such marching orders. The informant's
testimony was, therefore, properly admitted.
In an effort to blunt the force of this reasoning, the
appellant argues that Preston's plea agreement, which contained a
standard provision for a possible sentence reduction under USSG
§5K1.1, supplied the necessary focus. Although this is an
ingenious argument, it finds no support in the case law.4
Moreover, the appellant failed to advance this argument below, and
it borders on the absurd to suggest that the district court's
allowance of the testimony constituted plain error. See, e.g.,
United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)
(enumerating requisite elements of plain error).
For these reasons, this claim of error fails.
3. The appellant's third assignment of error focuses on
a single sentence in the prosecutor's closing argument. After
pointing out that defense counsel had been unable to show that
Preston's testimony at the two trials was inconsistent in any
respect, the prosecutor stated: "That's because there weren't any
[inconsistencies]. He told the truth before, and he's telling the
4
To fill this void, the appellant cites dictum in United
States v. Washington, 318 F.3d 845, 861 (8th Cir. 2003) (suggesting
that "after-the-fact" evidence showing government use of an
informant's services or a reduction in sentence for an informant's
cooperation may establish a focus on the defendant). Whatever may
be said of that dictum generally, the facts of this case do not
lend themselves to reaching out for it.
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truth now. Mr. Wallace told him about the robbery and about the
phone."
The appellant objects to the underscored sentence as
constituting impermissible vouching. Because he interposed no
contemporaneous objection, we review only for plain error. United
States v. Mejia-Lozano, 829 F.2d 268, 272 (1st Cir. 1987); United
States v. Griffin, 818 F.2d 97, 99-100 (1st Cir. 1987). We descry
none here.
Vouching occurs when a prosecutor places "the prestige of
the government behind a witness by making personal assurances about
the witness' credibility." United States v. Neal, 36 F.3d 1190,
1207 (1st Cir. 1994). The law forbids such tactics because they
"may induce the jury to trust the Government's judgment rather than
its own view of the evidence," and thus imperil the accused's right
to be judged solely on the basis of competent proof adduced at
trial. United States v. Young, 470 U.S. 1, 18-19 (1985).
Viewed against this backdrop, it is readily apparent that
the underscored sentence represents an unfortunate choice of words.
A reasonable juror easily could have taken it as a statement by the
prosecutor of her personal belief in Preston's truthfulness (and,
thus, as improper vouching). But plain error requires, inter alia,
a showing that the error affected the defendant's substantial
rights. See United States v. Olano, 507 U.S. 725, 732 (1993);
Duarte, 246 F.3d at 60. No such showing is possible here.
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For one thing, any deleterious effect attributable to the
statement was diluted because it was preceded by a detailed list of
reasons why, based on the trial evidence, the jury should believe
Preston's testimony. The challenged statement was tightly bound to
that evidence-based argument. For another thing, immediately after
making the challenged statement, the prosecutor refocused the jury
on the evidence concerning Preston's credibility5 — a step that
made clear that she was not speaking from personal knowledge.
Finally, the prosecution's case was robust, and the challenged
statement was merely a single sentence in the course of a four-day
trial.
The short of it is that the statement was improper and
should have been omitted. But it is wildly unlikely that this
brief and isolated comment so swayed the jury that the outcome of
the trial was affected. Given the fleeting nature of the
reference, the context in which it surfaced, the strength of the
prosecution's case, and the court's cautionary instructions, we
find that the error was harmless (and, therefore, not plain). See,
e.g., United States v. Joyner, 191 F.3d 47, 54-55 (1st Cir. 1999);
United States v. Sullivan, 85 F.3d 743, 750-51 (1st Cir. 1996);
United States v. Rodriguez-Estrada, 877 F.2d 153, 158 (1st Cir.
1989); Mejia-Lozano, 829 F.2d at 273-74.
5
In so doing, the prosecutor invited the jurors to look at the
facts bearing on the credibility question, including Preston's
demeanor while testifying.
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4. The appellant's final argument posits that his
attorney at the second trial rendered substandard assistance,
principally in failing to call a particular witness. We need not
delve into the particulars of this claim, for it is unripe.
This court has held, "with a regularity bordering on the
monotonous," that claims of ineffective assistance of counsel
generally cannot be raised for the first time on direct review,
but, rather, are more properly asserted in a petition for post-
judgment relief under 28 U.S.C. § 2255. United States v. Mala, 7
F.3d 1058, 1063 (1st Cir. 1993). We have, however, crafted a
narrow exception to this general rule for the rare case in which
the record is fully developed with respect to the ineffective
assistance claim. See, e.g., United States v. Natanel, 938 F.2d
302, 309 (1st Cir. 1991). The appellant seeks to bring his claim
within this safe harbor.
His effort founders. "The decision whether to call a
particular witness is almost always strategic, requiring a
balancing of the benefits and risks of the anticipated testimony."
Lema v. United States, 987 F.2d 48, 54 (1st Cir. 1993). In this
instance, we do not know if the witness was available, why defense
counsel did not call her, or what stratagems might have influenced
counsel's thinking. In fine, the record simply is not developed on
the relevant points. Consequently, the claim is not ripe for
review. See, e.g., United States v. Martinez-Vargas, 321 F.3d 245,
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251 (1st Cir. 2003); United States v. Perez-Carrera, 243 F.3d 42,
45 (1st Cir. 2001); United States v. Torres, 162 F.3d 6, 11 (1st
Cir. 1998).
We need go no further. For aught that appears, the
appellant was fairly tried, justly convicted, and lawfully
sentenced. We therefore affirm the judgment below, without
prejudice, however, to the appellant's right to raise his
ineffective assistance of counsel claim, if he so chooses, by means
of a timely petition for post-conviction relief. See 22 U.S.C. §
2255.
Affirmed.
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