United States v. Wallace

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals
For the First Circuit

No. 02-1429

UNITED STATES OF AMERICA,
Appellee,

v.

NICKOYAN WALLACE,
Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ronald R. Lagueux, Senior U.S. District Judge]

Before

Selya, Circuit Judge,

Stapleton* and Baldock,** Senior Circuit Judges.

Jon R. Maddox, by appointment of the court, for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Margaret E. Curran, United States Attorney, and Stephanie S.
Browne, Assistant United States Attorney, were on brief, for
appellee.

August 21, 2003

_______________
*Of the Third Circuit, sitting by designation.
**Of the Tenth Circuit, sitting by designation.
 Selya, Circuit Judge. On October 18, 2000, a federal

grand jury sitting in the District of Rhode Island returned a four-

count indictment against, inter alia, defendant-appellant Nickoyan

Wallace. The indictment charged him with the robbery of a gun shop

(count 1); conspiring to commit the robbery (count 2); theft of

firearms from a federally-licensed firearms dealer (count 3); and

brandishing a firearm during and in relation to a crime of violence

(count 4). See 18 U.S.C. §§ 1951, 922(u), 924(c)(1)(A)(ii). The

appellant's first trial resulted in a hung jury. Upon retrial, a

second jury convicted him across the board.

The district court sentenced the appellant to a 120-month

incarcerative term on the first three counts (the top of the

applicable guideline sentencing range) and imposed a consecutive

sentence of 84 months on count 4. This appeal followed.

We will not tarry. We have reviewed the record with

care. That appraisal reveals not only overwhelming evidence of the

appellant's guilt but also the absence of reversible error. Since

the questions presented are straightforward, it would be pointless

for us to write at length. We will, however, comment on each of

the appellant's four assignments of error.1

1. The appellant complains that the district court, at

sentencing, erroneously imposed a two-level enhancement for

1
There is also a fifth ground of appeal: a claim of
cumulative error. That claim requires no discussion.

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obstruction of justice (and, thus, effectively increased his

sentence). We discern no error.

An enhancement under USSG §3C1.1 is proper when a

defendant intentionally provides false testimony concerning a

material matter. See United States v. Villarman-Oviedo, 325 F.3d

1, 16 (1st Cir. 2003); United States v. Rowe, 202 F.3d 37, 43 (1st

Cir. 2000). Because this determination is inescapably factbound,

appellate review is for clear error. United States v. Cash, 266

F.3d 42, 44 (1st Cir. 2001); United States v. David, 940 F.2d 722,

739 (1st Cir. 1991). Thus, the district court's finding of

obstruction can be set aside only if whole-record review leaves us

with the "definite and firm conviction that a mistake has been

committed." United States v. U.S. Gypsum Co., 333 U.S. 364, 395

(1948).

In this instance, the district court zeroed in on the

appellant's attempt to distance himself from a cell phone that the

robbers had left at the scene of the crime. The court found in

pertinent part:

There's no question that the defendant
committed perjury during this trial. He lied
bald faced lies and he was thoroughly
impeached by the prosecutor. He created a
fictitious man. This James Coleman didn't
exist. The prosecutor completely devastated
him on cross-examination concerning the use of
that cell phone that was left behind. . . .
And that is an attempt to obstruct justice.

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Taken in context, this excerpt makes clear the district court's

thinking that both the cell phone incident and the appellant's

invention of "James Coleman" were simply examples of how far he was

willing to stretch the truth.2 The more fundamental point is that

the court believed — supportably — that the appellant testified

falsely when he denied having anything to do with the robbery or

the stolen guns. The jury necessarily rejected the appellant's

testimony in rendering its verdict and there can be no serious

question as to the testimony's materiality. Under these

circumstances, the district court did not commit clear error in

determining that the appellant provided materially false testimony.

See, e.g., Villarman-Oviedo, 325 F.3d at 16.

2. The appellant next argues that his jailhouse

confession to a fellow inmate, Willie Preston, should not have been

allowed as a part of the government's case in chief. There are two

problems with this argument. First, the issue was never raised

2
In all events, there was ample evidence that James Coleman
did not exist and that the appellant invented him. The trial
evidence revealed that the appellant used the cell phone in
question almost every day during the month leading up to the
robbery, undercutting any claim that the phone belonged to the
mysterious Coleman. The most that the appellant can possibly hope
to show is that the record supports conflicting inferences
concerning whether Coleman really existed and was the true owner of
the cell phone. That dooms the appellant's quest, for the
sentencing court's choice between plausible alternative inferences
cannot be clearly erroneous. United States v. Ruiz, 905 F.2d 499,
508 (1st Cir. 1990).

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below (and is, therefore, forfeit).3 See Young v. Lepone, 305 F.3d

1, 13 (1st Cir. 2002) (observing that "[i]f any principle is

settled in this circuit, it is that, absent the most extraordinary

circumstances, legal theories not squarely raised in the lower

court cannot be broached for the first time on appeal."); United

States v. Slade, 980 F.2d 27, 32 (1st Cir. 1992) (similar).

Second, Preston's testimony was properly admitted. At the time of

the conversation, Preston had no prearrangement with the

government, and, indeed, had never heard about either the appellant

or the gun shop robbery. Thus, the confession was not obtained in

violation of the rule announced in Massiah v. United States, 377

U.S. 201 (1964). We explain briefly.

Massiah holds that a defendant is denied the basic

protections of the Sixth Amendment when his own incriminating words

are deliberately elicited from him post-indictment by a federal

agent, in the absence of his counsel, and then used against him at

trial. Id. at 205-06. Thus, a successful Massiah objection

requires a defendant to show, at a bare minimum, that the person

with whom he conversed had previously been enlisted for that

purpose by the authorities. United States v. LaBare, 191 F.3d 60,

65 (1st Cir. 1999). In the case of a jailhouse informant, the

person must have been instructed both to focus on, and actively to

3
Indeed, the government claims, albeit without supporting
authority, that the point is waived. See Fed. R. Crim. P. 12(h).
We need not decide that point.

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elicit information from, the defendant. Id. at 64-65. Here, the

informant (Preston) had no such marching orders. The informant's

testimony was, therefore, properly admitted.

In an effort to blunt the force of this reasoning, the

appellant argues that Preston's plea agreement, which contained a

standard provision for a possible sentence reduction under USSG

§5K1.1, supplied the necessary focus. Although this is an

ingenious argument, it finds no support in the case law.4

Moreover, the appellant failed to advance this argument below, and

it borders on the absurd to suggest that the district court's

allowance of the testimony constituted plain error. See, e.g.,

United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)

(enumerating requisite elements of plain error).

For these reasons, this claim of error fails.

3. The appellant's third assignment of error focuses on

a single sentence in the prosecutor's closing argument. After

pointing out that defense counsel had been unable to show that

Preston's testimony at the two trials was inconsistent in any

respect, the prosecutor stated: "That's because there weren't any

[inconsistencies]. He told the truth before, and he's telling the

4
To fill this void, the appellant cites dictum in United
States v. Washington, 318 F.3d 845, 861 (8th Cir. 2003) (suggesting
that "after-the-fact" evidence showing government use of an
informant's services or a reduction in sentence for an informant's
cooperation may establish a focus on the defendant). Whatever may
be said of that dictum generally, the facts of this case do not
lend themselves to reaching out for it.

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truth now. Mr. Wallace told him about the robbery and about the

phone."

The appellant objects to the underscored sentence as

constituting impermissible vouching. Because he interposed no

contemporaneous objection, we review only for plain error. United

States v. Mejia-Lozano, 829 F.2d 268, 272 (1st Cir. 1987); United

States v. Griffin, 818 F.2d 97, 99-100 (1st Cir. 1987). We descry

none here.

Vouching occurs when a prosecutor places "the prestige of

the government behind a witness by making personal assurances about

the witness' credibility." United States v. Neal, 36 F.3d 1190,

1207 (1st Cir. 1994). The law forbids such tactics because they

"may induce the jury to trust the Government's judgment rather than

its own view of the evidence," and thus imperil the accused's right

to be judged solely on the basis of competent proof adduced at

trial. United States v. Young, 470 U.S. 1, 18-19 (1985).

Viewed against this backdrop, it is readily apparent that

the underscored sentence represents an unfortunate choice of words.

A reasonable juror easily could have taken it as a statement by the

prosecutor of her personal belief in Preston's truthfulness (and,

thus, as improper vouching). But plain error requires, inter alia,

a showing that the error affected the defendant's substantial

rights. See United States v. Olano, 507 U.S. 725, 732 (1993);

Duarte, 246 F.3d at 60. No such showing is possible here.

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 For one thing, any deleterious effect attributable to the

statement was diluted because it was preceded by a detailed list of

reasons why, based on the trial evidence, the jury should believe

Preston's testimony. The challenged statement was tightly bound to

that evidence-based argument. For another thing, immediately after

making the challenged statement, the prosecutor refocused the jury

on the evidence concerning Preston's credibility5 — a step that

made clear that she was not speaking from personal knowledge.

Finally, the prosecution's case was robust, and the challenged

statement was merely a single sentence in the course of a four-day

trial.

The short of it is that the statement was improper and

should have been omitted. But it is wildly unlikely that this

brief and isolated comment so swayed the jury that the outcome of

the trial was affected. Given the fleeting nature of the

reference, the context in which it surfaced, the strength of the

prosecution's case, and the court's cautionary instructions, we

find that the error was harmless (and, therefore, not plain). See,

e.g., United States v. Joyner, 191 F.3d 47, 54-55 (1st Cir. 1999);

United States v. Sullivan, 85 F.3d 743, 750-51 (1st Cir. 1996);

United States v. Rodriguez-Estrada, 877 F.2d 153, 158 (1st Cir.

1989); Mejia-Lozano, 829 F.2d at 273-74.

5
In so doing, the prosecutor invited the jurors to look at the
facts bearing on the credibility question, including Preston's
demeanor while testifying.

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 4. The appellant's final argument posits that his

attorney at the second trial rendered substandard assistance,

principally in failing to call a particular witness. We need not

delve into the particulars of this claim, for it is unripe.

This court has held, "with a regularity bordering on the

monotonous," that claims of ineffective assistance of counsel

generally cannot be raised for the first time on direct review,

but, rather, are more properly asserted in a petition for post-

judgment relief under 28 U.S.C. § 2255. United States v. Mala, 7

F.3d 1058, 1063 (1st Cir. 1993). We have, however, crafted a

narrow exception to this general rule for the rare case in which

the record is fully developed with respect to the ineffective

assistance claim. See, e.g., United States v. Natanel, 938 F.2d

302, 309 (1st Cir. 1991). The appellant seeks to bring his claim

within this safe harbor.

His effort founders. "The decision whether to call a

particular witness is almost always strategic, requiring a

balancing of the benefits and risks of the anticipated testimony."

Lema v. United States, 987 F.2d 48, 54 (1st Cir. 1993). In this

instance, we do not know if the witness was available, why defense

counsel did not call her, or what stratagems might have influenced

counsel's thinking. In fine, the record simply is not developed on

the relevant points. Consequently, the claim is not ripe for

review. See, e.g., United States v. Martinez-Vargas, 321 F.3d 245,

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251 (1st Cir. 2003); United States v. Perez-Carrera, 243 F.3d 42,

45 (1st Cir. 2001); United States v. Torres, 162 F.3d 6, 11 (1st

Cir. 1998).

We need go no further. For aught that appears, the

appellant was fairly tried, justly convicted, and lawfully

sentenced. We therefore affirm the judgment below, without

prejudice, however, to the appellant's right to raise his

ineffective assistance of counsel claim, if he so chooses, by means

of a timely petition for post-conviction relief. See 22 U.S.C. §

2255.

Affirmed.

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