United States v. Wayne Doyce McWilliams , 730 F.2d 1218 ( 1984 )

PER CURIAM:

Wayne McWilliams appeals his conviction under 18 U.S.C. § 922(a)(6) (making a false statement in acquisition of a firearm), under 18 U.S.C. § 922(h)(1) (receipt of a firearm by a convicted felon), and under 18 U.S.C. § 1510 (obstructing a criminal investigation). McWilliams raises a number of challenges to the conviction, including the contentions that he had ineffective assistance of counsel, that he suffered from vindictive prosecution and other prosecutorial and judicial misconduct, and finally, that the prior felony conviction should have been suppressed on the ground that his guilty plea violated Fed.R.Crim.P. 11. We note jurisdiction under 24 U.S.C. § 1291 and we affirm both convictions.

FACTS

In 1964, McWilliams pleaded guilty in federal district court in Louisiana to one count of receiving stolen property, a felony. He received a suspended sentence of two years and three years probation. In 1972, McWilliams, who worked as a bail bondsman and private investigator, applied for a concealed weapon permit in California. In 1975, when he purchased a revolver, McWilliams signed a form stating that he had never been convicted of a crime punishable by imprisonment for a term exceeding one year.

McWilliams’ concealed weapon permit was revoked in 1976. He attempted to regain it by seeking a pardon and filing for relief from disability under 18 U.S.C. §§ 845(b) and 925(c). As a result of the request for relief, a prior investigation of his 1975 firearms form was reopened and McWilliams was charged with making a false statement on receipt of a firearm and receipt of a firearm by a convicted felon, 18 U.S.C. §§ 922(a)(6) and 922(h)(1).

During a pretrial court appearance on the firearms charges Wayne McWilliams encountered his brother, James McWilliams, on his way to the Assistant U.S. Attorney to offer testimony against Wayne. An altercation ensued resulting in a charge against Wayne McWilliams for obstruction of a criminal investigation, 18 U.S.C. § 1510.

During the course of preparation for trial McWilliams changed attorneys. His new attorney filed a motion to consolidate the obstruction charge with the two firearms counts. He prevailed on the motion despite the fact that a previous consolidation motion filed by the Government had been successfully opposed by McWilliams’ prior counsel. McWilliams was convicted on all three counts after jury trial.

ANALYSIS

I

Ineffective Assistance of Counsel

McWilliams argues that he was denied his right to a fair trial because his lawyer was incompetent. The standard by which we judge competence is whether counsel’s errors or omissions “reflect a failure to exercise the skill, judgment or diligence of a reasonably competent criminal defense attorney.” Cooper v. Fitzharris, 586 F.2d 1325, 1330 (9th Cir.1978), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 793 (1979). Even if defense counsel is incompetent, relief will be granted only if his errors prejudiced the defendant. Id. at 1331. The errors cited on appeal viewed singly and collectively,¹ do not evidence the requisite level of incompetence nor do we find the requisite prejudice to McWilliams.

II

Vindictive Prosecution

McWilliams contends that the district court erred in denying his motion to dismiss for vindictive prosecution. Although McWilliams labels his claim vindictive prosecution, he appears also to be alleging selective or discriminatory prosecution. Vindictive prosecution claims usually arise when a defendant is penalized for exercise of statutory or constitutional rights by the imposition of a higher sentence or institution of increased charges. Selective prosecution occurs when a defendant is initially singled out for prosecution on the basis of improper criteria. McWilliams does not have a valid claim of either selective or vindictive prosecution.

The defendant has the burden of proving selective prosecution. He must demonstrate (1) that others similarly situated have not been prosecuted, and (2) that he was selected for prosecution on the basis of an impermissible ground such as race, religion or exercise of the constitutional rights. United States v. Hooton, 662 F.2d 628, 634 (9th Cir.1981), cert. denied, 455 U.S. 1004, 102 S.Ct. 1640, 71 L.Ed.2d 873 (1982); United States v. Douglass, 579 F.2d 545, 550 (9th Cir.1978). McWilliams does not prove improper selection criteria; he argues only that certain U.S. Attorneys disliked him because they suspected him of criminal activity. Although the First Circuit has said in dicta that personal vindictiveness on the part of the charging prosecutor would support a claim of discriminatory prosecution, United States v. Bourque, 541 F.2d 290, 293 (1st Cir.1976), we do not find evidence to support such a claim here, for the reasons which are discussed in connection with McWilliams’ vindicative prosecution claim.

Vindictive prosecution usually involves retaliatory imposition of additional penalties against a defendant who, after indictment, exercises some legal right, e.g., to attack his conviction, to file a motion to suppress, or to demand a speedy trial. See United States v. Groves, 571 F.2d 450 (9th Cir.1978); United States v. De Marco, 550 F.2d 1224 (9th Cir.), cert. denied, 434 U.S. 827, 98 S.Ct. 105, 54 L.Ed.2d 85 (1977); United States v. Alvarado-Sandoval, 557 F.2d 645 (9th Cir.1977). Nothing of the sort happened here. Although the filing of the initial indictment can provide the basis for a charge of vindictive prosecution, United States v. Hooton, 662 F.2d 628, 634 (9th Cir.1981), cert. denied, 455 U.S. 1004, 102 S.Ct. 1640, 71 L.Ed.2d 873 (1982), to sustain such claim, the defendant must show vindictiveness on the part of those who made the charging decision, id. McWilliams makes no such showing here.

The original indictment against McWilliams (the two firearms counts) was filed by U.S. Attorney James White. It was David Rodriguez, the Assistant U.S. Attorney in charge of prosecuting the case, who allegedly disliked McWilliams. The second action (obstruction of justice) was filed by Rodriguez, but was presented to the grand jury by another U.S. Attorney.

McWilliams presented no evidence of retaliatory motive on the part of Rodriguez. He makes no allegation against the other prosecutors. He does not allege that either the first or second indictment was filed to discourage him from or punish him for exercising some constitutional, statutory, or common law right. He argues only that certain conduct and statements of U.S. Attorney Rodriguez prove that he was biased against McWilliams and interested in seeing McWilliams punished.

Ill

Prosecutorial and Judicial Misconduct

McWilliams claims that misconduct by the prosecutor denied him a fair trial. At the threshold, we must decide whether misconduct occurred. If so we look to whether the issue was preserved on appeal and whether the misconduct prejudiced the defendant. United States v. Berry, 627 F.2d 193, 196-97 (9th Cir.1980), cert. denied, 449 U.S. 1113, 101 S.Ct. 925, 66 L.Ed.2d 843 (1981). The district judge is in a much better position to evaluate the prosecutor’s conduct and its impact. This court properly accords considerable deference to the trial court’s view of such matters.

McWilliams cites as misconduct the prosecutor’s questioning of an FBI agent concerning a prior firearms investigation of McWilliams. McWilliams’ attorney objected to the questioning and the judge disallowed the inquiry. The Government argües that the prior investigation was relevant to show how and why the current charges were filed and denies that the prosecutor’s questions were improper.

Even if the prosecutor’s questions can be characterized as misconduct, the misconduct was nonconstitutional error and does not warrant reversal if it is more probably than not harmless, Berry, 627 F.2d at 201. The possible prejudicial effect of alleged misconduct must be judged in the context of the entire trial. Donnelly v. De Christoforo, 416 U.S. 637, 645, 94 S.Ct. 1868, 1872, 40 L.Ed.2d 431 (1974). The misconduct complained of here was isolated and was not inflammatory. Given the weight of the evidence against McWilliams, it was more probable than not, not prejudicial.²

McWilliams also charges the prosecutor with misconduct for asking a police officer, who was testifying as a character witness for McWilliams, whether he had heard of any criminal investigations of McWilliams. The Government claims that the question was a proper method of impeaching the police officer’s knowledge of McWilliams’ reputation. McWilliams did not object to the question at trial. The trial court, however, objected sua sponte and warned the prosecutor that he was risking a mistrial. The prosecutor immediately dropped this line of questioning. The judge’s prompt warning together with later curative instructions and the weight of the evidence against McWilliams compel the conclusion that the allegedly improper questioning, even if assumed to be misconduct, was more probably than not harmless.³

McWilliams also charges the trial judge with misconduct because he mentioned the Ninth Circuit in discussing the marking of exhibits. McWilliams argues that this remark, which was unobjected to, informed the jury that the case would be appealed and caused them to take their duties lightly. This argument is meritless. An isolated and passing allusion to the Ninth Circuit would probably not even alert the jury to the right of appeal. In addition, there is no indication that if the jury were aware of the appellate remedy it would therefore come to a hasty and ill-considered decision.

IV

Rule 11

SCHROEDER, Circuit Judge.

A majority of the panel agrees that the conviction should be affirmed.

McWilliams argues that his 1964 guilty plea was taken in violation of Rule 11 and should have been suppressed by the district court. He contends that he was not aware of the maximum penalty he faced before he pleaded guilty, and that he was not advised of, nor was he aware of, the privilege against self-incrimination, his right to trial by jury, or his right to confront prosecution witnesses.

The United States Supreme Court has held that a defendant cannot maintain a collateral attack upon a prior conviction when the conviction is a predicate for firearms violations such as these. Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980). This circuit, however, has held that such collateral attacks may be maintained against convictions entered prior to the Lewis decision. United States v. Goodheim, 651 F.2d 1294 (9th Cir.1981). I therefore assume in this appeal, as did the district court in the trial proceedings, that the collateral attack may be maintained.

In 1964, when McWilliams pleaded guilty, Rule 11 provided that

A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere. The court may refuse to accept a plea of guilty, and shall not accept the plea without first determining that the plea is made voluntarily with understanding of the nature of the charge. If a defendant refuses to plead or if the Court refuses to accept a plea of guilty or if a defendant corporation fails to appear, the Court shall enter a plea of not guilty.

Fed.R.Crim.P. 11 (1964).

The provisions of Rule 11 have since been revised, and were adopted by the Supreme Court as the measure of the validity of a guilty plea in McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), and Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The standard of full compliance with Rule 11 only applies prospectively, however. Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969). The validity of a plea entered before McCarthy and Boykin is determined by the then governing standards of proof. United States v. Myers, 451 F.2d 402, 405-06 (9th Cir.1972). Thus the question before the district court was whether the plea was made voluntarily with an understanding of the charge, and the consequences of the plea. Munich v. United States, 337 F.2d 356, 359 (9th Cir. 1964).

The district court held a full evidentiary hearing in this case, and concluded that the plea was knowing and voluntary. Having reviewed the record before the district court as well as the plea proceeding in Louisiana, I agree that McWilliams clearly made an intelligent choice based upon a correct understanding of the consequences of his plea. At the time he pleaded guilty, McWilliams was represented by counsel. Although the judge did not formally advise McWilliams of the maximum sentence, the record reflects his choice to plead guilty in order to avoid a long prison term, and the prosecutor stated, on the record, that the maximum term was ten years. In exchange for the plea, McWilliams received probation, and, as the district court in this case noted, that was exactly what he bargained for.

In addressing pre-McCarthy guilty pleas, the Supreme Court has held that a plea may technically fall short of Rule ll’s provisions and yet be constitutional, if it is found to have been voluntary. Halliday, 394 U.S. at 883, 89 S.Ct. at 1499. No particular ritual or showing on the record is required. See Munich, 337 F.2d at 359; cf. United States v. Pricepaul, 540 F.2d 417, 424-25 (9th Cir.1976) (holding that the government has only to prove that a prior state plea was voluntary and intelligent, and need not show that each of the three Boykin rights was expressly brought to the defendant’s attention and waived by him). The evidence adduced by the district court clearly refuted McWilliams’ claim that he did not understand the consequences of his plea. Accord Wilkins v. Erickson, 505 F.2d 761, 764-65 (9th Cir. 1974). The district court’s finding of voluntariness was not clearly erroneous, and therefore McWilliams cannot successfully maintain that there was any constitutional defect in his 1964 guilty plea.

Conclusion

The conviction for violations of 18 U.S.C. §§ 922(a)(6); 922(h)(1); and 1510 is affirmed.

1 . McWilliams alleges incompetence in his counsel’s motion for consolidation of the firearms and obstruction charges, cross-examination of McWilliams’ wife, and failure to object to Government testimony regarding a prior investigation of McWilliams. Each of these actions by trial counsel could have been prompted by counsel’s trial strategy. Looking at the record as a whole, we do not find the requisite prejudice in any event.

2 . McWilliams alleges similar misconduct when the prosecutor asked an FBI agent whether, in 1976, a federal criminal investigation of McWilliams was in progress. Defense counsel, however, did not object to the question, and therefore the plain error doctrine applies. United States v. Berry, 627 F.2d 193, 199 (9th Cir.1980), cert. denied, 449 U.S. 1113, 101 S.Ct. 925, 66 L.Ed.2d 843 (1981). Assuming arguendo that the question constituted misconduct, it was isolated and ambiguous and certainly not of the degree of prejudice that would constitute plain error. United States v. Giese, 597 F.2d 1170, 1199 (9th Cir.), cert. denied, 444 U.S. 979, 100 S.Ct. 480, 62 L.Ed.2d 405 (1979).

3 . Ordinarily, when counsel fails to object to alleged misconduct at the time it occurs, we apply the "plain error” standard of review. United States v. Berry, 627 F.2d at 199. This is so because, in the absence of an objection, the trial court is given no opportunity to correct the alleged error and, “[t]he defendant may not allow error to go uncorrected and then ask this court to reverse this conviction.” Id. Where a trial judge recognizes error and acts on his or her own initiative to correct the error, the justification for review under the "plain error” standard is inapplicable. Under these circumstances, we will review an allegation of error on appeal under the harmless error rule applied in cases where proper objection has been made. See id. (indicating circumstances where a failure to object will not result in application of the plain error standard).