FILED
NOT FOR PUBLICATION JUL 16 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 09-30233 & 09-30236
Plaintiff–Appellee, D.C. Nos. 2:07-cr-00426-RSM-1
& 2:07-cr-00380-RSM-1
v.
CHARLES JAMES WILLIAMS, MEMORANDUM *
Defendant–Appellant.
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, District Judge, Presiding
Argued and Submitted June 9, 2010
Seattle, Washington
Before: CANBY, CALLAHAN and IKUTA, Circuit Judges.
No. 09-30233:
Charles James Williams pled guilty in the United States District Court for
the Western District of Washington to one count of possession of cocaine base
with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C).
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Williams appeals, arguing that the district court, by “explicitly encouraging” him
to plead guilty, violated Federal Rule of Criminal Procedure 11(c)(1), which
forbids courts from participating in discussions to reach a plea agreement. See
Fed. R. Crim. P. 11(c)(1). Because Williams did not raise this claim in the district
court, we review for plain error. See United States v. Bruce, 976 F.2d 552, 554
(9th Cir. 1992).
Nothing the district court said to Williams during the colloquy in question
constitutes plain error. See United States v. Olano, 507 U.S. 725, 734 (1993)
(explaining that “plain” is synonymous with “clear” and “obvious”). The colloquy
was extensive and dealt primarily with Williams’ dissatisfaction with his counsel,
asserted as trial was ready to begin. Actual plea bargaining was over; Williams
had rejected a government plea offer and no further offers were pending. The
district court in the colloquy reiterated Williams’s previous admissions that he had
made a series of bad choices. Williams stated that he was scared and added: “I
don’t care about time.” The court replied: “If that’s true, why don’t you just plead
straight up today? Why put yourself through this . . . .” This single response,
while improvident, was not clearly or obviously a violation of Rule 11(c)(1), nor in
these circumstances did it run afoul of the Rule’s purposes, namely, “to keep the
judge from shaping the plea bargain or persuading the defendant to accept
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particular terms, and to preserve judicial impartiality.” United States v. Frank,
36 F.3d 898, 902 (9th Cir. 1994); see also id. at 903 (“[Rule 11(c)(1)] does not
establish a series of traps for imperfectly articulated oral remarks.”). Here there
was no bargain in issue, and the court did not offer one; it merely pointed out one
option to Williams, for him to exercise or not. The court emphasized that the
choice was Williams’s.
Even if we were to assume, as we do not, that the court’s remark violated
Rule 11(c)(1), there was no effect on Williams’s substantial rights as required for
reversal under plain error review. Williams has not shown “a reasonable
probability that, but for the error, he would not have entered the plea.” United
States v. Dominguez Benitez, 542 U.S. 74, 83 (2004). We accordingly affirm his
conviction.
No. 09-30236:
This appeal arises from a separate proceeding in which a jury tried and
convicted Williams of being a felon in possession of a firearm, in violation of
18 U.S.C. § 922(g)(1). Williams argues for reversal of that conviction on the
ground that the voir dire of a prospective juror conducted in his absence violated
his constitutional right to be present during jury impanelment. The record
indicates, however, that the district court employed a “blind strike” system of
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challenges, during which counsel for both sides exercised a peremptory challenge
to remove that prospective juror. Because the prosecutor’s blind strike prevented
the juror from sitting regardless of any action of Williams or his counsel, Williams
cannot have been prejudiced by his absence from the juror’s voir dire. Any error
was harmless beyond a reasonable doubt.
Conclusion:
The convictions in Nos. 09-30233 and 09-30236 are both
AFFIRMED.
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