United States v. Wilson ( 1998 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 2 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-8069
(Dist. of Wyoming)
JOHN HENRY WILSON, aka Pete (D.C. No. 96-CR-78-3)
Wilson; aka Uncle Pete; aka Pistol
Pete,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRORBY, BRISCOE, and MURPHY, Circuit Judges.
Defendant John Henry Wilson appeals his convictions for conspiracy to
receive, possess, and transport stolen firearms in violation of 18 U.S.C. § 371 and
receipt and possession of stolen firearms in violation of 18 U.S.C. § 922(j).
Appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738(1967), noting his belief that there were no meritorious appellate issues and
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
requesting that this court allow him to withdraw from the case. Nevertheless,
consistent with the dictates of Anders, counsel identified the following two
arguments which Wilson wished to raise on appeal: (1) the testimony of three
juvenile witnesses was insufficient to prove his guilt beyond a reasonable doubt;
and (2) he did not receive a jury of his peers. This court exercises jurisdiction
pursuant to 28 U.S.C. § 1291 and, after due consideration and an independent
review of the record, grants counsel’s motion to withdraw and affirms Wilson’s
convictions.
As his first issue on appeal, Wilson asserts that he did not receive a fair
trial by an unbiased jury of his peers. In his Anders’ brief, defense counsel notes
that he was also trial counsel and did not discern any irregularity in the jury
selection. Counsel also notes that the sole ground upon which Wilson bases his
claim of a biased jury is that Wilson was ultimately convicted. For its part, the
United States asserts that Wilson waived any claim that the jury in his case did
not represent a fair cross section of the community when he failed to object to the
composition or selection of this jury prior to trial. We agree that Wilson has
waived his dubious claim of irregularity in the jury selection process by failing to
raise it in the district court. See 28 U.S.C. § 1867(a) (providing that any
challenge to the selection process for petit juries must be made before voir dire
examination begins); United States v. Bedonie, 913 F.2d 782, 794 (10th Cir.
-2-
1990) (holding that a claim or irregularity in the process of selecting a petit jury
cannot be raised for the first time on appeal). Furthermore, although the record
does not contain a transcription of the voir dire of potential jurors, an independent
review of the entire record before this court on appeal reveals nothing that would
suggest the jury here was anything but impartial.
Wilson also contends that the testimony presented to the jury was
insufficient to prove his guilt beyond a reasonable doubt. This argument is
without merit. “In reviewing the sufficiency of evidence to sustain a jury’s guilty
verdict, we examine the evidence in the light most favorable to the government in
order to determine whether the evidence . . . together with all reasonable
inferences to be drawn therefrom, is substantial enough to establish guilt.”
United States v. Johnson, 42 F.3d 1312, 1319 (10th Cir. 1994) (quotations
omitted). In conducting a review for sufficiency of the evidence, this court does
not function as a jury but, instead, accepts the jury’s resolution of conflicting
evidence and resolves all credibility choices in favor of the jury’s ultimate
verdict. United States v. Pappert, 112 F.3d 1073, 1077 (10th Cir. 1997); United
States v. Horn, 946 F.2d 738, 741 (10th Cir. 1991).
With the above standard in mind, Wilson’s claim is easily resolved.
Although Wilson testified at trial that he never agreed to transport stolen firearms
and did not, in fact, transport any stolen firearms, the United States presented the
-3-
testimony of three juvenile witnesses to the contrary. The first witness testified
that Wilson stood by while the stolen firearms were placed in his truck and that
Wilson then got in his truck and drove away. The second witness testified that he
overheard Wilson agree to take the stolen firearms to Denver. The third witness
testified that he overheard Wilson agree to transport the stolen firearms to his
residence. Furthermore, the testimony of the three juvenile witnesses was
corroborated by the fact that the stolen weapons were discovered during the
execution of a search warrant at Wilson’s residence. Thus, although the
testimony of the juveniles contradicted the testimony of Wilson, the jury
obviously concluded that it was the juveniles, rather than Wilson, who were
telling the truth. So credited, this evidence more than adequately proved the
United States’ case beyond a reasonable doubt.
The judgment of conviction is hereby AFFIRMED. Counsel’s motion to
withdraw pursuant to Anders is hereby GRANTED.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
-4-