United States v. Daniel Woolem

FILED
NOT FOR PUBLICATION
APR 22 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-30032
Plaintiff-Appellee, D.C. No. 16-CR-2079-SAB-1
v.
MEMORANDUM*
DANIEL WOOLEM, AKA Daniel Wayne
Woolem
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Stanley A. Bastian, District Judge, Presiding
Submitted April 12, 2019**
Seattle, Washington
Before: FLETCHER, CALLAHAN, and CHRISTEN, Circuit Judges.
Defendant-Appellant Daniel Woolem appeals his conviction for conspiracy
to distribute and distribution of methamphetamine in violation of 21 U.S.C. §§
841(a)(1), (b)(1)(A) and 846, and 21 U.S.C. § 841(a)(1) and (b)(1)(B). Woolem
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
presents interconnected claims of prosecutorial misconduct and ineffective
assistance of counsel. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we
affirm.1
When counsel fails to object at trial to acts of alleged prosecutorial
misconduct, we review for plain error. United States v. Hinton, 31 F.3d 817, 824
(9th Cir. 1994).
1. The prosecutor did not engage in improper vouching. “The prosecution
may not vouch for the credibility of its witnesses by ‘placing the prestige of the
government behind a witness through personal assurances of the witness’s
veracity’ or ‘suggesting that information not presented to the jury supports the
witness’s testimony.’” United States v. Dorsey, 677 F.3d 944, 953 (9th Cir. 2012)
(quoting United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993)).
We have consistently held that when the defense first attacks a witness’s
credibility, the prosecutor may ask the witness about the truthfulness requirements
of their plea agreement. See e.g., id. at 953–54; United States v. Monroe, 943 F.2d
1007, 1013 (9th Cir. 1991) (holding that “a reference to the ‘truthful testimony’
provisions of a witness’s agreement with the government does not constitute
1
Because the parties are familiar with the facts and arguments on
appeal, we do not recite them here.
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vouching if it is made in response to an attack on the witness’s credibility because
of his plea bargain”).
Here, not only did Woolem’s counsel attack the credibility of the
government’s witnesses during his opening statement his counsel’s cross
examination purposely elicited that the witness was receiving a reduced sentence in
exchange for his testimony and Woolem’s counsel moved to admit the entire plea
agreement into evidence. Only after these attacks on the witness’s credibility did
the prosecutor elicit further testimony about the witness’s understanding of the plea
agreement on re-direct. “When the defense opens a door, it should not be surprised
to see the prosecutor enter.” Dorsey, 677 F.3d at 954. We conclude that there was
no improper vouching.
2. The prosecutor did not ask Woolem to comment on the veracity of other
witnesses at trial. “A prosecutor must not ask defendants during cross-examination
to comment on the truthfulness of other witnesses.” United States v.
Alcantara-Castillo, 788 F.3d 1186, 1191 (9th Cir. 2015). “This rule is ‘black letter
law,’ and it ensures that determinations of credibility remain within the sole
province of the jury.” Id. (citation omitted) (quoting United States v. Harrison,
585 F.3d 1155, 1158 (9th Cir. 2009)).
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The prosecutor’s questions here were not equivalent to asking Woolem to
comment on the truth or falsity of another witness. Our cases finding prosecutorial
misconduct involve questions that asked a defendant to comment directly on the
testimony of another witness. Cf. id. at 1192 (holding that “[y]our testimony is that
[they are] inventing stories about you; is that correct?” was improper); United
States v. Combs, 379 F.3d 564, 567 (9th Cir. 2004) (holding that “[s]o Special
Agent Bailey is making that up?” was improper).
3. We decline to consider Woolem’s ineffective assistance of counsel claims
on direct appeal. “As a ‘general rule,’ we ‘do not review challenges to the
effectiveness of defense counsel on direct appeal.’” United States v. McGowan,
668 F.3d 601, 605 (9th Cir. 2012) (quoting United States v. Moreland, 622 F.3d
1147, 1157 (9th Cir. 2010)). “Challenge by way of a habeas proceeding is
preferable because it permits the defendant to develop a record as to what counsel
did, why it was done, and what, if any, prejudice resulted.” Id. (internal quotations
omitted). Neither of our recognized exceptions for review applies. Accordingly,
we decline to address Woolem’s ineffective assistance of counsel claims without
prejudice to his raising them in a properly filed motion under 28 U.S.C. § 2255.
AFFIRMED.
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