United States v. Wilkerson

United States Court of Appeals
For the First Circuit

No. 00-1538

UNITED STATES OF AMERICA,

Appellant,

v.

CHARLES WILKERSON,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge]

Before

Lynch, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge

Theodore B. Heinrich, Assistant United States Attorney,
with whom Donald K. Stern, United States Attorney, was on brief,
for appellant.

William A. Hahn, with whom Hahn & Matkov was on brief,
for appellee.
 June 4, 2001

LIPEZ, Circuit Judge. On October 29, 1999, a jury found

Charles Wilkerson guilty on one count of crack cocaine distribution.

Wilkerson's subsequent motion for a new trial was granted. In granting

the motion, the district court concluded that it erred in excluding

evidence of a prior bad act of the prosecution's informant offered to

impeach his credibility. Furthermore, the court concluded that the

error was not harmless, primarily because of concerns about the

effectiveness of defense counsel during the trial.

After a careful review of the record, we conclude that we

must vacate the order granting a new trial. The exclusion of evidence

here was unmistakably harmless, and there are no claims of procedural

unfairness and no claims of constitutional dimension. Under these

circumstances, the new trial order did not meet the requirement of Fed.

R. Crim. P. 33 that the order be in the interests of justice, and its

issuance was not a proper exercise of discretion.

I.

A. The Charges

We recount the circumstances of the charges in this case in

detail because of the importance of the harmless error analysis at

trial and on appeal. Charles Wilkerson was initially indicted with

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thirty other individuals for conspiracy to distribute crack cocaine as

members and associates of the Castlegate street gang. The defendant

was tried separately. The government elected to proceed only on the

two counts of crack cocaine distribution in violation of 21 U.S.C. §

841(a)(1) charged in the indictment. These charges were based upon

controlled purchases made at Blue Hill Avenue in Boston. The witnesses

in each instance were under the supervision of Drug Enforcement

Administration (DEA) agents and officers of the Boston Police

Department.

The first alleged sale was on April 30, 1997, involving less

than one gram of cocaine. At trial, the jury could not reach a verdict

on this count. The second sale on July 8, 1997, involving

approximately one ounce of cocaine, was made to cooperating witness

Steven Williams, who had an audio transmitter and $400. Williams was

enlisted to purchase cocaine from Castlegate gang member Shawn Mells,

also known as "Smiles." DEA Task Force Agent Joao Monteiro assisted in

the transaction, driving Williams to Blue Hill Avenue and Castlegate

Road in an undercover vehicle.

At the time Williams attempted to contact Mells, he initially

approached Thomas Hargrove, also known as "Buzz." When Williams asked

to arrange a purchase, Hargrove called up to a third floor apartment

and told an unidentified female to get "Smiles" or "Chuck" for the

transaction. Williams checked in with Monteiro at the undercover

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vehicle and then proceeded up Blue Hill Avenue with Hargrove. Williams

met with the dealer, who was driving a blue Toyota. Although neither

Monteiro's observation nor the audiotape of the conversation resulted

in an identification of Wilkerson as the individual in the car,

Williams identified the dealer as Charles Wilkerson, whom he knew

previously and indeed greeted on the audiotape with familiarity,

referring to him as "Chuck" during the exchange. "Chuck" indicated

that he would return in twenty minutes with the agreed amount of crack

cocaine, one ounce in exchange for $800.

Twenty minutes later, Hargrove assured Williams that "Chuck"

would come by shortly. When the blue Toyota returned, accompanied by

a green Toyota, Williams says he saw the defendant in the green car.

He entered that vehicle, and they then drove a couple of blocks to

complete the transaction. Monteiro followed in his car. When the

purchase was completed, Williams asked how he could contact "Chuck"

about future deals. A piece of paper was passed, with the name "Chuck"

and two phone numbers written on it. One of these numbers proved to be

a cell phone number subscribed to by the defendant. Williams's account

of events is corroborated by Monteiro's observation (though he could

not identify the defendant), the audiotape of the transaction obtained

from the wire worn by Williams, and a videotape of the scene made from

a small, concealed camera on the undercover vehicle.

B. The Court's Evidentiary Ruling

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 Wilkerson's trial began on October 18, 1999, and lasted five

days. On count two, Williams was a crucial witness, and the defense's

cross-examination involved several exchanges intended to undermine his

credibility. First, the defense questioned Williams about his

agreement to cooperate with the DEA, and the approximately $12,000 and

other benefits he had received over a two-year period for this

cooperation. He was questioned about his prior history of dealing

drugs; his failure to file income tax returns; and his convictions for

assault and battery of a police officer and improper attachment of a

motor vehicle plate. Over the objection of the government, the defense

also asked him about two default warrants from 1993 and 1994 for

failure to return leased property. He acknowledged a conviction on

this charge as well. When Williams attempted to explain that this

conviction was a mistake, even though it appears on his record, the

government asked to approach the bench and objected again.

The court acknowledged the admissibility of prior convictions

and open charges against the witness,1 but asked defendant's counsel

where he was going with the default warrants. Counsel stated: "I'm not

going at it as prior convictions. I'm going at it as prior instances

of dishonest conduct." The court replied: "You can't go at it that

way, that is overruled. I thought you were talking about a deal. This

1By open charges the court was referring to any pending charges
covered by the cooperation agreement with the government.

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is not a deal. You can't have instances of dishonest conduct if it

didn't result in a conviction, and if you're going to do it by the

conviction route, it has to be certified copies. So this line of

questioning, unless it's the appropriate way, is excluded."2 Defense

counsel then sought permission to inquire about an additional offense,

Williams's receipt of stolen property. Noting that it was not clear

from the record whether this incident included a conviction, the court

said: "[I]t's either a conviction or it's something that was a current

deal. You can't just go into prior bad conduct." Defense counsel

replied: "Your honor, I think I'm entitled to get into prior instances

of dishonest conduct on the witness." The court responded: "I don't

agree." Defense counsel made an offer of proof on using the receipt of

stolen property charge as evidence of a prior bad act. The court

replied:

[Y]ou're not allowed to, that's not appropriate
impeachment. To talk about dishonest conduct,
you can talk about prior instances of lying,
perhaps an instance where someone lied under
oath, but you can't just get into a barrage about
dishonest conduct. It's not under the rules and
that's what we have to go by. So that's
excluded.
After this exchange defense counsel continued cross-examination of

Williams without further objection.

2 Although the court felt the inquiry regarding the default
warrants was inappropriate without the record of conviction, it did not
strike Williams's admission to a conviction for failure to return
leased property.

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C. Motion for a New Trial

The defendant filed a motion for a new trial on three

grounds: limitations placed on the cross-examination of Williams; the

jury's receipt of prejudicial information that the court had excluded

from evidence; and the prosecution's innuendo at trial that the

defendant was a dangerous individual. Attached to the motion was a

copy of the state court complaint relating to the receipt of stolen

property charge, which alleges that on August 4, 1992, officers found

two stolen car tires resting on the rear bumper of Williams's motor

vehicle after receiving a report that a group of males was stealing

tires from another vehicle.

In considering the motion, the court only addressed its

evidentiary ruling during the cross-examination of Williams. The court

said that it had erred in premising its evidentiary ruling on Federal

Rule of Evidence 609, relating to prior convictions, rather than Rule

608(b), involving prior bad acts. While noting that defense counsel

did not explicitly cite to the appropriate rule, the court acknowledged

that it might well have permitted use of the 1992 receipt of stolen

property charge for impeachment.

We quote from the court's bench ruling at length to show the

court's concern about the effectiveness of counsel at trial, and the

interplay of that concern with its harmless error analysis:

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 [T]he government's brief very effectively
goes through all the things that I allowed Mr.
Palmer [defendant's counsel] to get into in the
examination of Steven Williams. And, in fact,
one could conclude that it's harmless error. I'm
not sure that I do. And so I went back over the
whole trial.
And part of the problem here is that
evaluating where this fits in the whole trial,
let me first say a couple of things.
I was troubled by the level of preparation
of counsel in this case. Whether it rises to
ineffective assistance of counsel, I don't know.
But I certainly was troubled by that.
I was troubled when, on the fourth day of
trial, when I asked, have you been to the scene,
been to where the building from which the
surveillance took place, the answer was no. And,
yet, you were asking for a view, which would have
been a blind view. . . .
And I was troubled by the implication that
– I mean, on the very first day of trial you
hadn't realized that there was going to be a
police officer who was going to testify that he
recognized Wilkerson, not just – not just a
cooperating witness. But that's a devastating
piece of evidence, that a police officer who . .
. had some prior familiarity with Mr. Wilkerson
said that's the man.
And even in terms of the preservation of
this issue – I don't think that this is being
defensive, but it conceivably can be. When I
looked at how you presented the issue to me, you
didn't at that point have the documents that you
have now. You didn't show me when this receiving
stolen property charge . . . had come from. You
didn't make any of the arguments that you're
making now. You didn't cite to that rule . . .
.

So, when I step back from all of this, I'm
not sure where I am in terms of harmless error.
I was troubled by the way the case was litigated
as it was going on. I'm troubled in reviewing
the record afterwards.

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In the end, the court decided that the exclusion from cross-examination

of the receipt of stolen property charge was not harmless error,

"[g]iven my concerns about the overall trial," and granted the motion

for a new trial.

II.

"Motions for a new trial are directed to the broad discretion

of the trial judge, who may weigh the evidence and evaluate the

credibility of witnesses in considering such a motion." United States

v. Indelicato, 611 F.2d 376, 387 (1st Cir. 1979). However, "[t]he

remedy of a new trial is sparingly used, and then only where there

would be a 'miscarriage of justice . . . and where the evidence

preponderates heavily against the verdict.'" Id. (quoting United

States v. Leach, 427 F.2d 1107, 1111 (1st Cir. 1970)). In United

States v. Glantz, 810 F.2d 316 (1st Cir. 1987), we reversed the grant

of a new trial. Addressing the district court's concerns, we

concluded: "The substantially appropriate nature of the prosecutor's

comments, the repeated correction of any possible deficiencies, and the

strong government case all lead to the conclusion that the district

court abused its discretion in taking the rare step of ordering a new

trial." Id. at 324. In Glantz, as here, we do not reach our

conclusion lightly. See id. at 321; see also United States v.

Paniagua-Ramos, 135 F.3d 193 (1st Cir. 1998) (affirming grant of new

trial where jury charge was prejudicial).

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A. The Court's Concerns about the Effectiveness of Counsel

Not surprisingly, defense counsel did not argue his

ineffectiveness at trial as one of the grounds for granting a new

trial. Nevertheless, there is no formal bar to the court's sua sponte

consideration of the ineffectiveness of counsel in evaluating a timely

motion for a new trial.3 In rare instances, when the record for review

is adequate, we will consider an ineffective assistance of counsel

claim on direct appeal and order appropriate relief if there has been

a denial of the Sixth Amendment right to counsel. See United States v.

Natanel, 938 F.2d 302 (1st Cir 1991) ("[W]here the critical facts are

not genuinely in dispute and the record is sufficiently developed to

allow reasoned consideration of an ineffective assistance claim, an

appellate court may . . . determine the merits of such a contention on

direct appeal.") Similarly, if the trial court considering a motion

for a new trial concluded that it had an adequate basis for finding

that a defendant had been denied his Sixth Amendment right to the

assistance of counsel, the court could rule that a new trial was

necessary to avoid a miscarriage of justice. Cf. United States v.

Soto-Alvarez, 958 F.2d 473, 479 (1st Cir. 1992) (finding no miscarriage

of justice in denial of a motion for a new trial given the lack of

evidence of ineffective assistance).

3"A motion for a new trial based on any [] grounds [other than
newly discovered evidence] may be made only within 7 days after the
verdict or finding of guilty . . . ." Fed. R. Crim. P. 33.

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 The more likely impediment to such a ruling is a practical

one. "Determining the existence of ineffective assistance generally

requires an 'independent factual inquiry into the merits of the

claim,'" United States v. Sutherland, 929 F.2d 765, 774 (1st Cir.

1991) (quoting United States v. Caggiano, 899 F.2d 99, 100 (1st Cir.

1990)), usually in the form of an evidentiary hearing in a collateral

proceeding. See United States v. Jadusingh, 12 F.3d 1162, 1169-70 (1st

Cir. 1994); Brien v. United States, 695 F.2d 10, 13 (1st Cir. 1982).

The court considering an ineffective assistance claim must apply the

two-part test laid out in Strickland v. Washington, 466 U.S. 668

(1984). First, the defendant must show that counsel's performance fell

below an objective standard of reasonableness. Id. at 687. Second,

the defendant must "affirmatively prove prejudice," meaning "that there

was a reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different." Id. at

693-94.

In granting the motion for a new trial here, the court did

not hold an evidentiary hearing and did not make a finding of

ineffective assistance of counsel pursuant to the Strickland test.

Instead, after reviewing the transcript of the trial, the court

explicitly stated that it was not making such a finding despite its

concerns about defense counsel's performance: "I was troubled by the

level of preparation of counsel in this case. Whether it rises to

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ineffective assistance of counsel, I don't know." We do not know

whether the court's reservations about an ineffective assistance of

counsel finding related to the performance or prejudice prong of the

Strickland test, or both. We do know, however, that the court had to

address the issue of prejudice in concluding that its refusal to permit

cross-examination about the receipt of stolen property charge was not

harmless error. That is, the court had to decide that it was highly

probable that the evidentiary error contributed to the jury verdict.

See United States v. Rose, 104 F.3d 1408, 1414 (1st Cir. 1997). In

essence, the court seems to be saying that its mistake and the

perceived mistakes of counsel, in combination, produced a miscarriage

of justice that requires a new trial.

In our view, however, the court's concern about defense

counsel's performance does not strengthen its harmless error analysis.

The court identifies three instances of poor performance by defense

counsel: asking for a blind view, ignorance of a police officer

identification, and mishandling the receipt of stolen property

evidentiary issue. Of these three instances, only the last related to

the charge for which Wilkerson was convicted, rendering the other two

irrelevant to the harmless error inquiry. With respect to the last

instance, even if counsel's poor handling of the receipt of stolen

property evidentiary issue led the court into error, that fact alone is

also insignificant. What matters is whether that evidentiary ruling

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was prejudicial to the defendant pursuant to the harmless error

standard.

B. Harmless Error

In considering the motion for a new trial, the court decided

that it excluded the evidence of prior receipt of stolen property by a

key witness because of a misunderstanding about the grounds for

admission pursuant to Federal Rule of Evidence 609 and Rule 608(b).4

Given the discretion available under 608(b), the court said that, "if

I had been shown [the basis for admissibility under that rule], I

probably would have let it in on the theory that Mr. Williams was the

main witness and you were entitled to go at him in any way that you

lawfully could."

An error in the exclusion of evidence does not necessitate

a new trial when that error can be deemed harmless. Fed. R. Crim. P.

52(a). An error "will be treated as harmless if it is highly probable

that the error did not contribute to the verdict." Rose, 104 F.3d at

1414.5 In conducting a harmless error analysis, the court "must mull

4 The court excluded the evidence because it understood that
admission was being sought under Federal Rule of Evidence 609, which
establishes the parameters for admission of prior convictions. Rather,
the defense was attempting to impugn the witness's credibility on
cross-examination by raising a specific instance of conduct that is
"probative of truthfulness or untruthfulness" under Federal Rule of
Evidence 608(b). According to the Rule, such events may be inquired
into "in the discretion of the court." Fed. R. Evid. 608(b).
5This case does not involve a constitutional error that would
require the error to be harmless beyond a reasonable doubt. See United

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the ruling in context, giving due weight to the totality of the

relevant circumstances." Ruiz-Troche v. Pepsi Cola of P. R. Bottling

Co., 161 F.3d 77, 87 (1st Cir. 1998). It would be inappropriate if

"the court unduly emphasized the problems that existed and, therefore,

unnecessarily intervened in a process that – although imperfect –

adequately protected defendants' rights." Glantz, 810 F.2d at 320-21.

Although the excluded evidence was offered to further impeach

Williams's credibility, there was already substantial impeachment

evidence in the case. The cross-examination had included Williams's

past drug-dealing activities, his history of tax evasion, and his

convictions for assault on a police officer, illegal attachment of a

license plate and failure to return leased property. Defense counsel

also had the opportunity to explore Williams's relationship with the

government, including the DEA's payment for his services as a

cooperating witness. Williams's history with members of the Castlegate

gang was also explored. At best, the excluded evidence was cumulative.

Admission of the additional charge regarding receipt of stolen property

in 1992 is not likely to have altered the jury's assessment of the

witness's credibility.

Furthermore, the evidence against Wilkerson was strong.

While it is true that Williams is the only witness who identified

Wilkerson as the distributor, other evidence corroborates his account.

States v. Leon-Delfis, 203 F.3d 103, 112 (1st Cir. 2000).

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Agent Monteiro witnessed the entirety of Williams's crack cocaine

purchase and supports Williams's report of the transaction. Both video

and audiotapes of the transaction also match Williams's testimony.

Finally, one of the phone numbers "Chuck" provided to arrange future

drug purchases matches Wilkerson's registered cell phone number. In

light of this evidence, and the impeachment evidence already in the

case, it is highly probable that the exclusion of one seven-year-old

charge for receipt of stolen property from the cross-examination of

Williams did not contribute to the verdict, see United States v.

Rodriguez Cortes, 949 F.2d 532, 543 (1st Cir. 1991), and hence the

error, if any, was harmless. The motion for a new trial should not

have been granted.

The order granting a new trial is vacated. The case is
remanded for further proceedings consistent with the opinion.

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