United States v. Williams ( 1994 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
___________________________________
No. 92-9005
___________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENNETH DON WILLIAMS,
Defendant-Appellant.
___________________________________
No. 93-1291
___________________________________
UNITED STATES OF AMERICA
Plaintiff-Appellee,
versus
MICHAEL JOHN MULLINS,
Defendant-Appellant.
____________________________________________________
Appeals from the United States District Court for the
Northern District of Texas
____________________________________________________
( April 20, 1994 )
Before GOLDBERG, DAVIS, and DeMOSS, Circuit Judges.
GOLDBERG, Circuit Judge:
We consider in these appeals the appellants's challenges to
the trial court's definition of reasonable doubt. Guided by the
Supreme Court's recent discussion of this issue in Victor v.
Nebraska, ___ U.S. ___, 114 S. Ct. 1239 (1994), and by the
realization that no court can guarantee the absolute certitude of
any definition of reasonable doubt, we find the instructions given
by the district court to be acceptable. We also find that the
appellants's individual contentions do not warrant reversal of
their convictions. We therefore affirm the judgments of the
district court.
I. Facts and Proceedings Below
Kenneth Don Williams was charged in a one count indictment
of being a convicted felon in possession of a firearm in violation
of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e). In a separate
and unrelated indictment, Michael John Mullins was charged with two
counts of being a convicted felon in possession of a firearm in
violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). Both men
pleaded not guilty, and each proceeded to trial.
At both trials, the juries were instructed that the
government had to prove each element of the charged offenses beyond
a reasonable doubt. The district court gave the juries the same
definition of reasonable doubt in both cases. That definition
reads as follows:
Proof beyond a reasonable doubt is proof that leaves you
firmly convinced of a defendant's guilt. There are few
things in life that we know with absolute certainty, and in
criminal cases the law does not require proof that a
defendant is guilty beyond all possible doubt. If, based on
your consideration of all the evidence, you are firmly
convinced that a defendant is guilty of the crime charged,
you must find him guilty. If, however, you think there is
a real possibility that he is not guilty, you must give him
the benefit of the doubt and find him not guilty.
(emphasis added by the appellants).
2
The jury in Williams's case convicted him on the one count
on which he was charged. He was sentenced to serve a 240 month
term of imprisonment. The jury in Mullins's case convicted him on
the first felon in possession of a firearm count on which he was
charged, but could not reach a verdict on the second count. After
his trial but before sentencing, Mullins filed a motion to have
four prior Texas state felony convictions against him invalidated
for the purposes of sentencing. The district court denied this
motion and used three of these prior convictions to enhance
Mullins's sentence under the Armed Career Criminal Act, 18 U.S.C.
§ 924(e). Mullins was sentenced to 235 months of imprisonment.
Both defendants appeal, contending that the district court's
definition of reasonable doubt understated the level of proof that
the government must meet to win a conviction and overstated the
level of uncertainty necessary before the jury must acquit a
defendant. Each defendant also raises matters specific to his own
conviction. We will examine these issues in turn.
II. Discussion
A. Reasonable Doubt
The Due Process Clause of the Constitution requires the
government to prove every element of a charged offense beyond a
reasonable doubt. In re Winship, 397 U.S. 358 (1970). The Supreme
Court has recently observed that, "[a]lthough this standard is an
ancient and honored aspect of our criminal justice system, it
defies easy explication." Victor v. Nebraska, 114 S. Ct. at 1242.
Perhaps for this reason, neither the Supreme Court nor this Court
3
have ever required a particular definition of reasonable doubt to
be read to the jury. See id. at 1243 ("[S]o long as the court
instructs the jury on the necessity that the defendant's guilt be
proven beyond a reasonable doubt, the Constitution does not require
that any particular form of words be used in advising the jury of
the government's burden of proof.") (citation omitted).1
Nevertheless, any definition of reasonable doubt that a district
court does use must, "taken as a whole, . . . correctly convey[]
the concept of reasonable doubt to the jury." Holland v. United
States, 348 U.S. 121, 140 (1954). If there is a "reasonable
likelihood that the jury understood the instructions to allow
conviction based on proof insufficient to meet the Winship
standard," then the instruction runs afoul of the Due Process
Clause, and the conviction must be reversed. Victor, 114 S. Ct. at
1243.
In this case, the Constitution is not our only benchmark.
Through our supervisory powers, we "may, within limits, formulate
1
Believing that all definitions of reasonable doubt are
damaging, at least two Federal Courts of Appeals have advised
against making any such attempt. See United States v. Adkins,
937 F.2d 947, 950 (4th Cir. 1991) ("This circuit has repeatedly
warned against giving the jury definitions of reasonable doubt,
because definitions tend to impermissibly lessen the burden of
proof."); United States v. Hall, 854 F.2d 1036, 1039 (7th Cir.
1988) ("[N]o attempt should be made to define reasonable doubt .
. . . [T]he point is that, at best, definitions of reasonable
doubt are unhelpful to a jury, and, at worst, they have the
potential to impair a defendant's constitutional right to have
the government prove each element beyond a reasonable doubt. An
attempt to define reasonable doubt presents a risk without any
real benefit."). In contrast, we have encouraged the district
courts in this Circuit to use this Circuit's Pattern Jury
Instruction on the definition of reasonable doubt. See infra
note 2.
4
procedural rules not specifically required by the Constitution or
the Congress." United States v. Hasting, 461 U.S. 499, 505 (1983).
Thus, in order "to preserve judicial integrity," id., we may
reverse the appellants's convictions if we are persuaded that the
district court's jury instruction is not acceptable, even though it
passes constitutional muster. In this case, however, we find that
under any standard, the instruction that the district judge gave
acceptably defined reasonable doubt.
The definition of reasonable doubt that the district court
gave the juries in the present cases is similar to a definition of
reasonable doubt endorsed by the Federal Judicial Center. See
Federal Judicial Center, Pattern Criminal Jury Instructions 17-18
(1987) (instruction 21).2 However, the parentage of the district
2
The Federal Judicial Center's proposed definition of
reasonable doubt reads as follows:
[T]he government has the burden of proving the defendant
guilty beyond a reasonable doubt. Some of you may have
served as jurors in civil cases, where you were told that
it is only necessary to prove that a fact is more likely
true than not true. In criminal cases, the government's
proof must be more powerful than that. It must be beyond
a reasonable doubt.
Proof beyond a reasonable doubt is proof that leaves
you firmly convinced of the defendant's guilt. There are
very few things in this world that we know with absolute
certainty, and in criminal cases the law does not require
proof that overcomes every possible doubt. If, based on
your consideration of the evidence, you are firmly
convinced that the defendant is guilty of the crime
charged, you must find him guilty. If on the other hand,
you think there is a real possibility that he is not
guilty, you must give him the benefit of the doubt and
find him not guilty.
Federal Judicial Center, Pattern Criminal Jury Instructions 17-18
(1987) (instruction 21).
The Fifth Circuit's Pattern Jury Instructions for criminal
cases offers an alternative definition of reasonable doubt. It
defines the government's burden of proof in a criminal case as
5
court's definition of reasonable doubt is not all that recommends
it; previous panels of this Court have explicitly endorsed the very
instruction that the district court used in these cases. See
United States v. Hunt, 794 F.2d 1095 (5th Cir. 1986); United States
v. Haggard, No. 92-1856 (5th Cir. Sept. 21, 1993) (unpublished).
Nevertheless, the appellants argue that the district court's
definition of reasonable doubt, and by implication this Court's
opinion in Hunt and cases that have followed it, were drawn into
question by Cage v. Louisiana, 498 U.S. 39 (1990) (per curiam). In
that case, a Louisiana state court trial judge instructed the
jurors as follows:
[A reasonable doubt] is one that is founded upon a real
tangible substantial basis and not upon mere caprice and
conjecture. It must be such doubt as would give rise to a
grave uncertainty, raised in your mind by reasons of the
unsatisfactory character of the evidence or lack thereof.
A reasonable doubt is not a mere possible doubt. It is an
actual substantial doubt. It is a doubt that a reasonable
man can seriously entertain. What is required is not an
absolute or mathematical certainty, but a moral certainty.
Id. at 40 (emphasis supplied by the Court). The emphasized
portions of the instruction in Cage rendered the charge used in
follows:
A "reasonable doubt" is a doubt based upon reason and
common sense after careful and impartial consideration of
all the evidence in the case. Proof beyond a reasonable
doubt, therefore, is proof of such a convincing character
that you would be willing to rely and act upon it without
hesitation in the most important of your own affairs.
United States Fifth Circuit District Judges Association, Pattern
Jury Instructions (Criminal Cases) 16 (1990) (instruction 1.06).
Although we do not require the use of this instruction, we have
encouraged the district courts in this Circuit to adopt this
instruction, hoping that "[a] measure of uniformity would . . .
render appellate review easier and quicker." United States v.
Hunt, 794 F.2d 1095, 1101 (5th Cir. 1986).
6
that case unconstitutional because it "suggest[ed] a higher degree
of doubt than is required for acquittal under the reasonable doubt
standard." Id. at 41. The Court explained that when the
highlighted portions of the charge were then "considered with the
reference to ``moral certainty,' rather than evidentiary certainty,
it becomes clear that a reasonable juror could have interpreted the
instruction to allow a finding of guilt based on a degree of proof
below that required by the Due Process Clause." Id.
After this case was argued, the Supreme Court handed down
its opinion in Victor v. Nebraska, 114 S. Ct. 1239. In that case,
the Court considered and rejected constitutional challenges to two
other state court definitions of reasonable doubt. In the first
case, a California state court defined reasonable doubt as follows:
[Reasonable doubt] is not a mere possible doubt; because
everything relating to human affairs, and depending on moral
evidence, is open to some possible or imaginary doubt. It
is that state of the case which, after the entire comparison
and consideration of all the evidence, leaves the minds of
the jurors in that condition that they cannot say they feel
an abiding conviction, to a moral certainty, of the truth of
the charge.
Id. at 1244. The Court rejected the defendant's contention that
use of the terms "moral evidence" and "moral certainty" rendered
the charge unconstitutional. The Court ruled that the reference to
"moral evidence" did not focus the jury's attention on the ethics
or morality of the defendant's acts; instead, the Court held that
the charge, taken as a whole, adequately instructed the jury to
consider the facts of the case. Id. at 1247. Similarly, the Court
held that the reference to "moral certainty", although more
problematic, and ambiguous in the abstract, did not render the
7
instruction given in that case unconstitutional. Other parts of
the charge (particularly the "abiding conviction" language)
supplied the instruction with the necessary content. The Court
concluded that the charge "``impress[ed] upon the factfinder the
need to reach a subjective state of near certitude of the guilt of
the accused.'" Id. (quoting Jackson v. Virginia, 443 U.S. 307, 315
(1979)). Finally, the Court held that the charge's instruction
that a reasonable doubt was "not a mere possible doubt" was not
objectionable. This was for the simple reason that "``[a]
"reasonable doubt," at a minimum, is one based upon a "reason."'
A fanciful doubt is not a reasonable doubt." Id. at 1248 (quoting
Jackson, 443 U.S. at 317).
In the second case that the Supreme Court considered in
Victor, a Nebraska state court defined reasonable doubt as follows:
"Reasonable doubt" is such a doubt as would cause a
reasonable and prudent person, in one of the graver and more
important transactions of life, to pause and hesitate before
taking the represented facts as true and relying and acting
thereon. It is such a doubt as will not permit you, after
full, fair, and impartial consideration of all the evidence,
to have an abiding conviction, to a moral certainty, of the
guilt of the accused. At the same time, absolute or
mathematical certainty is not required. You may be
convinced of the truth of a fact beyond a reasonable doubt
and yet be fully aware that possibly you may be mistaken.
You may find an accused guilty upon the strong probabilities
of the case, provided such probabilities are strong enough
to exclude any doubt of his guilt that is reasonable. A
reasonable doubt is an actual and substantial doubt arising
from the evidence, from the facts or circumstances shown by
the evidence, or from the lack of evidence on the part of
the state, as distinguished from a doubt arising from mere
possibility, from bare imagination, or from fanciful
conjecture.
Id. at 1249. The Court acknowledged that defining reasonable doubt
to be actual and substantial doubt was somewhat problematic because
8
such a definition could be read to overstate the degree of doubt
required for acquittal. Indeed, in Cage, the use of similar
language led the Court to hold that the definition of reasonable
doubt given in that case violated the Due Process Clause. Cage,
498 U.S. at 41.3 However, the context in which the suspect
language appeared sufficiently eviscerated the difficulty with this
feature of the charge. The instruction itself explained that "an
actual and substantial doubt" was to be "distinguished from a doubt
arising from mere possibility, from bare imagination, or from
fanciful conjecture." Victor, 114 S. Ct. at 1249. With this
admonition, the Court held, the charge correctly instructed the
jury that actual and substantial doubt was doubt that was not
seeming or imaginary. Id. at 1250. The Court also rebuffed the
defendant's challenge to the "moral certainty" language contained
in the charge used at his trial. As the Court wrote,
"[i]nstructing the jurors that they must have an abiding conviction
of the defendant's guilt does much to alleviate any concerns that
the phrase moral certainty might be misunderstood in the abstract."
Id. The Court also observed that the instruction "equated a doubt
sufficient to preclude moral certainty with a doubt that would
cause a reasonable person to hesitate to act," id. at 1250-1251, a
definition of reasonable doubt that the Court approved of in
3
In Victor, the Court was careful to note that it was not
the Cage instruction's reference to substantial doubt alone that
rendered the charge in that case unconstitutional. Instead, the
Cage Court was "concerned that the jury would interpret the term
``substantial doubt' in parallel with the preceding reference to
``grave uncertainty,' leading to an overstatement of the doubt
necessary to acquit." Victor, 114 S. Ct. at 1250.
9
Holland. 348 U.S. at 140. Finally, the Court rejected the
defendant's argument that the charge's reference to "strong
probabilities" understated the government's burden of proof. The
same sentence of the charge informed the jury that "the
probabilities must be strong enough to prove the defendant's guilt
beyond a reasonable doubt." Victor, 114 S. Ct. at 1251.
In the present cases, Williams and Mullins challenge the
"firmly convinced" language that appears in the district court's
charge.4 They contend that the charge understated the government's
burden of proof by describing it to be closer to the preponderance
of the evidence standard than the constitutionally required beyond
a reasonable doubt standard. We are not persuaded. The appellants
cannot complain that the "firmly convinced" formulation speaks in
terms of probabilities because "the beyond a reasonable doubt
standard is itself probabilistic." Id. at 1247. The appellants
can only complain that the phrase "firmly convinced" connotes
something less than the "very high level of probability required by
the Constitution in criminal cases." Id. However, we think that
the "firmly convinced" language, read in the context of the charge
4
The appellants first contend that the district court's use
of the term "firmly convinced" is directly analogous to the use
of the term "moral certainty" in Cage. We are somewhat perplexed
by this argument. To be sure, in Cage and Victor, the Court
expressed concern with the use of the phrase "moral certainty".
But the Court's complaint with that term stemmed from its fear
that the expression might not be recognized by modern juries.
Victor, 114 S. Ct. at 1247. No such problem is present with the
"firmly convinced" language that the district court used in the
present cases. Instead, the appellants's best argument is that
the term "firmly convinced" understates the level of proof that
the government must meet. We address this argument in the text.
10
as a whole, adequately apprises the jury of the requisite level of
proof. By repeating the admonition that the jury had to be firmly
convinced of the appellants's guilt and by explaining that the
government did not have to prove the appellants guilty beyond all
possible doubt, the district judge sufficiently communicated to the
jury that they had to find the appellants guilty to a near
certainty.
The appellants also challenge the district court's
characterization of a reasonable doubt as a "real possibility" that
the defendant is not guilty. We find no infirmity in this portion
of the charge either. When read in the context of the charge as a
whole, the instruction's "real possibility" formulation explains
that the beyond a reasonable doubt standard does not require "proof
that overcomes every possible doubt." In other words, the modifier
"real" merely indicates that the jury is not to acquit a defendant
if it can conceive of any possibility that the defendant is not
guilty. This is because "absolute certainty is unattainable in
matters relating to human affairs." Id. at 1246. Just as the jury
is not to indulge in fanciful speculation that the defendant is
guilty, the jury is not to indulge in fanciful speculation that the
defendant is not guilty.
A definition of reasonable doubt that includes the "firmly
convinced" and "real possibility" language was expressly endorsed
and ably defended by Justice Ginsburg in her concurrence in Victor.
114 S. Ct. at 1252 (Ginsburg, J., concurring in part and concurring
in the judgment). After setting out the Federal Judicial Center's
11
proposed definition of reasonable doubt (an instruction nearly
identical to the one given by the district court in these cases),
see supra note 2, Justice Ginsburg explained that "[t]he ``firmly
convinced' standard for conviction, repeated for emphasis, is . .
. enhanced by the juxtaposed prescription that the jury must acquit
if there is a ``real possibility' that the defendant is innocent."
Victor, 114 S. Ct. at 1253.5 This recommendation further supports
our own approval of the district court's instruction.
In short, nothing in Cage or Victor persuades us that the
trial court's definition of reasonable doubt is unacceptable.
Composing a perfect definition of reasonable doubt may be an
illusory goal, but perfection and certitude are rare in any
intellectual discipline, whether it be scientific or humanistic.
There are very few things that can be said with an assurance that
is unimpeachable. Since Einstein's day, we have been told that
even in the sciences, conclusions do not work out that way; there
is almost always a predicate of fluidity and relativity. With this
understanding, we have examined the boundaries of the words
contained in the district court's charge and the longitude and
latitude of their expressiveness. This examination leaves us with
the firm conviction that the jury, upon hearing the judge's
5
We think that the Federal Judicial Center's instruction is
superior to the instruction that the district court gave in at
least one respect. The Federal Judicial Center's instruction
informs the jurors that the prosecution must prove its case by
more than a mere preponderance of the evidence, but not
necessarily to an absolute certainty. The district court's
instruction does not contrast the preponderance of the evidence
standard and the beyond a reasonable doubt standard. Such a
contrast is a useful way to frame the issue for the jury.
12
instructions, knew how to determine whether there was a reasonable
doubt as to the defendants's guilt.
Finally, the appellants assert that the instruction that the
district court gave impermissibly deviated from the Fifth Circuit's
Pattern Jury Instructions. We find no merit to this argument.
Although the Pattern Jury Instructions provide a useful guide for
the district courts, we have never required the trial courts in
this Circuit to use any particular language in a jury charge. See
United States v. Masat, 948 F.2d 923, 928 (5th Cir. 1991) ("Trial
judges have substantial latitude in tailoring their instructions if
they fairly and adequately cover the issues presented in the
case."), cert. denied, 113 S. Ct. 108 (1992).
B. Mullins's Individual Contentions
Mullins contends that the district court erroneously refused
to invalidate for the purpose of sentencing four state felony
convictions to which he had pleaded guilty on November 24, 1986.
Three of these four convictions were for violations of the Texas
Controlled Substances Act; the fourth conviction was for theft.6
The violations of the Controlled Substances Act were "serious drug
6
Mullins has two other felony convictions--a 1974 conviction
for delivery of marijuana and a 1976 conviction for the sale of
marijuana--that he does not challenge.
As noted below, a person who has been convicted under 18
U.S.C. § 922(g) and has three or more prior "serious drug
offenses," is subject to an enhanced sentence under the 18 U.S.C.
§ 924(e). All five of Mullins's prior drug convictions meet the
statutory definition of a "serious drug offense"; thus, all five
of these convictions were counted towards application of §
924(e). If Mullins's attack on the four 1986 felony convictions
has merit (particularly the three counts for violating the Texas
Controlled Substances Act), then he would have only two "serious
drug offenses," and § 924(e) would not be applicable.
13
offenses" under the Armed Career Criminal Act ("ACCA"), 18 U.S.C.
§ 924(e), and were thus used to enhance Mullins's sentence under
that law.7 Mullins maintains that these convictions were
constitutionally invalid because his guilty pleas were not
voluntarily and intelligently given. See North Carolina v. Alford,
400 U.S. 25 (1970). Specifically, he argues that he never actually
declared that he was guilty of the four offenses, that he was not
adequately advised of the nature of the charges against him, and
that a sufficient factual basis for his guilty pleas did not exist.
The district court held a hearing concerning the
constitutional validity of Mullins's 1986 convictions.8 At this
hearing, the district court examined a copy of the transcript of
7
Section 924(e) provides:
In the case of a person who violates section 922(g)
of this title and has three previous convictions by any
court referred to in section 922(g)(1) of this title for a
violent felony or a serious drug offense, or both,
committed on occasions different from one another, such
person shall be fined not more than $25,000 and imprisoned
not less than fifteen years, and . . . such person shall
not be eligible for parole with respect to the sentence
imposed under this subsection. 18 U.S.C. § 924(e)(1).
Furthermore, although Mullins's initial offense level was
24, because Mullins was subject to an enhanced sentence as an
armed career criminal under § 924(e), his adjusted offense level
was required to be 33. See U.S.S.G. § 4B1.4(b).
8
In such a hearing, the government has the initial burden of
submitting evidence of past convictions that expose the defendant
to punishment under 18 U.S.C. § 924(e). Unless such evidence
reveals unconstitutionality on its face, it will suffice to prove
the existence of valid convictions. Once the government
establishes the fact of the prior convictions, the defendant must
then prove the constitutional invalidity of any conviction that
he or she attacks by a preponderance of the evidence. United
States v. Barlow, 17 F.3d 85, __ (5th Cir. 1994). The district
court's factual findings will be upheld unless they are clearly
erroneous. Id.14
the November 24, 1986 state court arraignment and sentencing
hearing. The district court determined that Mullins had knowingly
and intelligently pleaded guilty to the four challenged state court
convictions. Agreeing with the district court below, we conclude
that Mullins's state court guilty pleas were properly accepted.
The record reflects that Mullins voluntarily and intelligently
pleaded guilty and had an understanding of the rights that he
waived and the consequences of his pleas.
Mullins's first argument is that since he never actually
declared that he was guilty of the four offenses, he never entered
a valid plea of guilty to the four crimes.9 However, an
examination of the record belies Mullins's contention that he did
not plead guilty. In the state court proceeding, the court first
informed Mullins of the nature and elements of the offenses with
which he was charged and determined that he understood the charges
against him. The court then questioned Mullins as follows:
THE COURT: Papers that are filed in your cases indicate
to the Court that when you are arraigned you will plead
guilty, is that true?
MULLINS: Yes, sir.
THE COURT: Are you pleading guilty of your own free will
and accord?
9
This argument is premised on the proposition that, in order
for there to be a valid plea of guilty, a defendant must
personally utter the word "Guilty" after the court asks "How do
you plead?" We have found no cases that contain such a holding.
Instead, our review of the case law demonstrates that "there is
no fixed colloquy, no set sequence or number of questions and
answers, no minimum length of the hearing, no talismanic
language" that is required to be used in guilty-plea hearings.
Stewart v. Peters, 958 F.2d 1379, 1384 (7th Cir.), cert. denied,
113 S. Ct. 239 (1992).
15
MULLINS: Yes, sir.
THE COURT: Has anyone promised you anything, coerced you
or threatened you or done any violence to you to make you
plead guilty in any of these four cases?
MULLINS: No, sir.
The court then informed Mullins of the range of punishment that he
was facing for each crime. Next, Mullins's own attorney questioned
him:
Q: Michael, you are the same person named in these four
indictments, is that correct?
A. Right.
Q: Did I explain to you your right to have separate jury
trials in these cases?
A: Right.
Q: I had your permission to give up those rights?
A: Yes, sir.
Q: And in entering you [sic] plea of guilty, have I had
sufficient time to go over the facts of the cases with you?
A: Yes, sir.
The court then admitted a signed Judicial Confession for each
crime. In these confessions, Mullins waived his constitutional
rights and confessed to committing the crimes alleged in the four
indictments. Later, the prosecutor questioned Mullins:
Q: You signed a judicial confession in each of the four
cases?
A. Yes, I guess I did, I did, yes.
Q: Did you commit the offenses as those confessions say
you did?
A: Yes.
16
These colloquies, when coupled with the written confession that
Mullins signed for each offense, demonstrate that the defendant did
in fact plead guilty to the four charges against him. In the
context of this case, it is of no consequence that Mullins did not
specifically utter the words "I am guilty." Although this is
plainly the better course, we do not require such a talismanic
incantation, so long as the language used is expressive of the
defendant's culpability.
Furthermore, a review of the state court arraignment and
sentencing hearing also reveals that Mullins's remaining
contentions cannot withstand scrutiny. The record reveals that
Mullins was adequately advised of the nature of the charges against
him and that there was a sufficient factual basis for his guilty
pleas.
Finally, at his federal sentencing hearing, Mullins claimed
to be high on heroin when he entered his 1986 guilty pleas.
However, at the federal hearing, Mullins acknowledged that, during
his state hearing, he understood that he was pleading guilty to
four separate counts, that he signed separate confessions for each
offense, and that he committed each of the offenses with which he
was charged. Mullins also acknowledged that he was telling the
truth at the state sentencing hearing. Mullins has failed to show
that any drugs that he may have been taking so affected him that he
was incapable of making a voluntary and intelligent waiver of his
trial rights. Cf. Godinez v. Moran, 113 S. Ct. 2680 (1993) (test
of mental competency to plead guilty is whether the defendant has
17
a sufficient present ability to consult with a lawyer with a
reasonable degree of rational understanding and has a rational as
well as factual understanding of the proceedings against him.).
In sum, we conclude that the district court did not err when
it concluded that Mullins had knowingly and intelligently waived
his rights and validly pleaded guilty to the charges against him.
C. Williams's Individual Contentions
Williams argues that the government committed prosecutorial
misconduct to a degree sufficient to warrant reversal of his
conviction. To rise to this level, prosecutorial misconduct must
be "so pronounced and persistent that it casts serious doubts upon
the correctness of the jury's verdict." United States v. Bentley-
Smith, 2 F.3d 1368, 1378 (5th Cir. 1993). The misconduct that
Williams alleges takes two forms. Williams first contends that the
prosecutor elicited improper character evidence against him and
improperly impeached Shazelle Williams, the defendant's wife.
Williams also objects to allegedly improper remarks that the
prosecutor made in his closing argument. Only some of these
objections were made during the trial. After a studied review the
record, we hold these instances of alleged misconduct do not
require reversal of Williams's conviction.
III. Conclusion
The judgments of the district court are AFFIRMED.
18