Unpublished Disposition, 874 F.2d 817 (9th Cir. 1987)

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U.S. Court of Appeals for the Ninth Circuit - 874 F.2d 817 (9th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,v.Peter PILASKI, Defendant-Appellant.

No. 88-1087.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 13, 1988.Decided April 27, 1989.

Before FLETCHER, BEEZER and LEAVY, Circuit Judges.


MEMORANDUM* 

FACTS AND PROCEEDINGS

On November 17, 1986, a small bomb, hidden in a flower bouquet, exploded on Ms. Pilaski's desk. Ms. Pilaski and a co-worker were injured by the explosion. Peter Pilaski and Shaun Small were charged with planting the bomb. The Grand Jury's indictment charged Peter Pilaski with (1) making, and aiding and abetting in the making of a destructive device in violation of 26 U.S.C. § 5861(f) (Count I); (2) possessing, and aiding and abetting in the possession of an unregistered destructive device in violation of 26 U.S.C. § 5861(d) (Count II); (3) aiding and abetting in the destruction of government property and causing harm to individuals in violation of 18 U.S.C. § 844(f) (Count III); (4) conspiracy to violate the aforementioned code sections in violation of 18 U.S.C. § 371 (Count IV); and (5) knowingly and willfully giving false statements to agents of the Federal Bureau of Investigation (F.B.I.) in violation of 18 U.S.C. § 1001 (Count V).

Pilaski entered a not guilty plea to all five counts. On December 9, 1987, Count V was dismissed. The jury found Pilaski guilty on the other four counts. Pilaski was sentenced to fifteen years in prison. Pilaski appeals on seven grounds: (1) ineffective assistance of counsel; (2) error due to the prosecutor stating his personal opinion in closing argument; (3) jury instructions; (4) the Allen charge; (5) clear abuse by trial judge in allowing a continuance; (6) insufficiency of the evidence to support the conviction; and (7) illegality of his sentence. We affirm.

DISCUSSION

Pilaski claims he was denied effective assistance of counsel because his trial attorney: (1) failed to move the court for a competency hearing concerning Shaun Small; (2) failed to move the court for a psychiatric examination of Shaun Small; (3) failed to introduce critical evidence at trial; (4) failed to object to the court's Allen charge; (5) introduced damaging testimony concerning Pilaski's refusal to testify at Small's trial; and (6) failed to prevent the introduction of irrelevant inflammatory evidence.

Standard of Review

Ineffective assistance of counsel claims must be reviewed de novo by appellate courts. United States v. Catabran, 836 F.2d 453, 461 (9th Cir. 1988).

To prevail on a claim of ineffective assistance of counsel, the defendant must show: (1) that his trial counsel failed to exercise the skill, judgment, or diligence of a reasonably competent attorney and (2) this failure resulted in prejudice to the defendant so that it was reasonably likely to alter the outcome of the trial. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). Appellant must show that but for counsel's errors, the result would have been different. Id. at 694. The burden is upon the appellant to demonstrate that counsel's actions caused prejudice that more likely than not altered the outcome. Id. at 693.

Pilaski claims, given Small's history of bizarre behavior, that there was a legitimate doubt as to his ability to understand the proceedings and speak truthfully. Pilaski asserts that the trial counsel's failure to move the court for a competency hearing resulted in prejudice of a nature that was reasonably likely to have altered the outcome of his trial.

Fed.R.Evid. 601 states that: "every person is competent to be a witness except as otherwise provided in these rules." Fed.R.Evid. 601 is meant to allow a broad spectrum of witnesses to testify, leaving credibility questions to the jury. We have held that a judge must hold a competency hearing if he reasonably should entertain a good faith doubt as to the defendant's competence. Darrow v. Gunn, 594 F.2d 767, 770-71 (9th Cir.), cert. denied, 444 U.S. 849 (1979). Pilaski presents no evidence showing why Small would have been declared incompetent to testify. Pilaski's attorney made the strategic choice of attempting to establish that Shaun Small had the motivation and capacity to commit the bombing on his own rather than to challenge Small's competency. Pilaski's attorney acted as competent counsel in not demanding a competency hearing of Small.

Pilaski claims that Small exhibited bizarre behavior which should have led Pilaski's attorney to ask for a psychiatric examination. Pilaski fails to note any case showing how counsel's failure to ask for a psychiatric examination of Small rose to the level of ineffective assistance of counsel. Even discrepancies in Small's testimony were credibility questions properly left to the jury. Although a psychiatric examination may have challenged Small's credibility, the jury was able to observe for itself Small's behavior and judge his credibility. Nothing indicates that Pilaski's attorney was not acting as a competent attorney.

Pilaski cites, as another alleged deficiency in his representation, the fact that his attorney did not introduce certain telephone records. These telephone records supposedly would have rebutted testimony of Shaun Small and his family that there was little contact between them after Small began living with the Pilaskis.

The evidence of the telephone records is collateral to any issue in the trial except credibility. On the issue of credibility, it is merely cumulative. Pilaski has failed to demonstrate that but for the failure to introduce the telephone records, the trial could have ended differently. The failure of Pilaski's attorney to introduce the telephone records does not constitute ineffective assistance of counsel.

Pilaski cites as a deficiency in his representation the fact that his trial lawyer chose not to object to the Allen charge given to the jury during its deliberations. Allen charges are an acceptable practice in this circuit. United States v. Wauneka, 842 F.2d 1083, 1088-89 (9th Cir. 1988). As will be more fully discussed below, the Allen charge given by the court was not coercive. Therefore, Pilaski's attorney had no basis for objecting to an Allen charge.

Pilaski asserts that his attorney introduced damaging evidence of Pilaski's refusal to testify at Small's trial and that the introduction of this evidence constitutes ineffective assistance of counsel. Small testified that Pilaski was called to testify as a witness in Small's defense and that he asserted his constitutional right not to testify. Pilaski claims that this testimony allowed the government in redirect examination to ask additional questions in this area and develop the strong implication that Pilaski had something to hide.

Pilaski's attorney asked Small about Pilaski's refusal to testify at Small's trial in an attempt to discredit Small by showing how Small's testimony had changed between trials. Pilaski's attorney tried to show how Small, at his own trial, said Pilaski did all the bomb work, yet at Pilaski's trial indicated that he and Pilaski worked on the bomb together. Small was a crucial witness and this strategy is within the realm of competent lawyering.

Pilaski argues that he had ineffective assistance of counsel because his attorney did not object to evidence which was introduced by the prosecution that he beat his wife, that he was a member of a Hitler youth organization during World War II, and that his father was a high ranking officer in Hitler's Gestapo.

Evidence of Pilaski beating his wife could have been introduced to prove the intent or motive of Pilaski to kill or injure his wife. Fed.R.Evid. 404(b); United States v. Bowman, 720 F.2d 1103, 1105 (9th Cir. 1983). Thus, even if Pilaski's attorney had objected, the evidence was admissible.

Evidence that Pilaski was a member of the Hitler youth and his father a Gestapo officer was included in an answer by Ms. Pilaski about Pilaski's background. Any prejudice which might have occurred was cured by the trial court's instruction to the jury to disregard such evidence. There was other evidence quoting Pilaski to the effect that he was opposed to what Hitler had done.

Conclusion

Pilaski has failed to show any specific instances which individually or collectively constitute ineffective assistance of counsel. Pilaski has also failed to demonstrate any errors of counsel which had a reasonable likelihood of altering the outcome of his trial.

II. Prosecutor's Statement of Personal Opinion in Closing Argument

Standard of Review

Prosecutor's remarks are reviewed in "the entirety ... under the harmless error rule, Fed. R. Crim. P. 52(a), to determine whether it is more probable than not that the improper remarks materially affected the verdict." United States v. Prantil, 764 F.2d 548, 556 (9th Cir. 1985); see United States v. Lyman, 592 F.2d 496, 499 (9th Cir. 1978), cert. denied, 442 U.S. 931 (1979).

Pilaski argues the prosecutor committed misconduct during his closing argument when he expressed a personal opinion as to the guilt of Pilaski. There is no dispute among the parties that the prosecutor made a statement of personal opinion which was improper. However, defense counsel immediately interrupted and the trial court admonished the prosecutor, making it clear to the jury that this was not something it should consider. The prosecutor agreed with the court and asked the jury to ignore his comments about his personal conviction. The judge subsequently instructed the jury that what the lawyers said was not evidence in the case. The trial court's admonition of the prosecutor and instruction to the jury cured any possible prejudice to the defendant. The prosecutor's remark of personal conviction was harmless error.

Standard of Review

Pilaski claims that the judge committed error by telling the jury to focus on inconsistencies in Small's testimony. The question before reviewing courts is "whether the judge has made 'it clear to the jury that all matters of fact are submitted to their determination.' " United States v. James, 576 F.2d 223, 228 (9th Cir. 1978) (citing Quercia v. United States, 289 U.S. 466, 469 (1933)).

In James, we held that certain comments by the trial judge indicating that elements of the offense had been established did not impermissibly intrude upon the jury's function. Id. at 227-28. In this case, the judge merely focused the jury on the testimony of Small, which appeared to be key to this case. The judge commented to the jury that his opinion did not matter. Nothing in this case leads to the conclusion that the court misused its influence. Instead, the judge instructed the jury that his comments were not to be taken as his view on the ultimate jury question of guilt or innocence, and that the jury was free to disregard them.

Standard of Review

The standard of review for Allen charges is abuse of discretion. United States v. Sommerstedt, 752 F.2d 1494, 1497 (9th Cir.), cert. denied, 474 U.S. 851 (1985). "The test for impropriety of an Allen charge is whether, in its context, the instruction had a coercive effect." Wauneka, 842 F.2d at 1088.

Pilaski contends that giving the Allen charge was prejudicial error. "This circuit evaluates coerciveness on the basis of (1) the form of the instruction; (2) the period of deliberation following the Allen charge; (3) the total time of jury deliberations; and (4) the indicia of coerciveness or pressure upon the jury." Id. at 1088.

Pilaski claims that failure to use the language of the model instructions was error. No cases suggest that failure to follow the model results in error. In any event, the wording of the instruction was very close to the model and therefore the Allen charge meets part one of the five-part analysis in Wauneka. Similarly, the rest of the criteria as applied to the record fail to show coerciveness. The record reveals that six days separate the challenged jury instructions and the verdict. Three and one-half hours of deliberation has been considered sufficient. United States v. Beattie, 613 F.2d 762, 765 (9th Cir.), cert. denied, 446 U.S. 982 (1980). We cannot find a coercive effect.

V. Continuance for Small to Reconsider Taking the Oath

Standard of Review

"The decision to grant or deny a continuance lies within the sound discretion of the trial judge and will only be overturned upon a showing of clear abuse." United States v. Clevenger, 733 F.2d 1356, 1359 (9th Cir. 1984).

Pilaski contends that the trial court abused its discretion when the court permitted a continuance. When witness Shaun Small first took the stand, he unexpectedly balked at testifying by refusing to take the oath. The trial judge continued the trial over the weekend to allow Small an opportunity to consult with his lawyers and family. Small was essential to the government's case. No demonstrable prejudice accrued to Pilaski. The trial judge's rationale for a short continuance was sound and was not an abuse of discretion.

Standard of Review

"We review the evidence in a light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Jewell, 827 F.2d 586, 588 (9th Cir. 1987).

Pilaski asserts that there was insufficient evidence to convict him. Pilaski is foreclosed from arguing this issue. As the Government properly points out, Pilaski waived his right to make this argument because he failed to raise this issue in a renewed motion for judgment of acquittal at the end of the evidence or after the verdicts of guilty. United States v. Harden, 846 F.2d 1229, 1232 (9th Cir.), cert. denied, --- U.S. ---, 109 S. Ct. 264 (1988).

However, even if this issue were not foreclosed, Pilaski's argument is meritless. In this circuit, we will reverse on the basis of insufficient evidence only if, viewing the evidence in the light most favorable to the Government, we determine that no rational trier of fact could have found the elements of the crime beyond a reasonable doubt. United States v. Martinez, 806 F.2d 945, 946 (9th Cir. 1986), cert. denied, 481 U.S. 1056 (1987). The key issue in the trial was the credibility of the testimony of witness Shaun Small. If the jury believed Small, there was sufficient evidence to support Pilaski's convictions. The question of credibility is for the jury to decide. There was sufficient evidence to support Pilaski's convictions.

Standard of Review

Where the sentencing court imposes a sentence within the statutory limits of the prescribed crime, we will not disturb that decision unless we find an abuse of discretion. United States v. Chiago, 699 F.2d 1012, 1014 (9th Cir.), cert. denied, 464 U.S. 854 (1983).

Pilaski asserts that giving him the same sentence as Shaun Small received, in the face of significant differences in their culpability, constitutes an abuse of discretion requiring reversal on Count III. At the time of sentencing, the Government took the position that Pilaski was more culpable than Small because Pilaski directed and planned the crime. The probation officer agreed in his presentence report. The trial court disagreed because Small had inserted a fragmentation device into the bomb on his own. The trial judge imposed the same sentence on Pilaski as Small had received, reasoning that Pilaski should not suffer a greater consequence from being involved in the bombing than Small. The trial judge's opinion concerning parity worked in favor of Pilaski and was not an abuse of discretion. The district court did not abuse its discretion in sentencing Pilaski to fifteen years imprisonment.

CONCLUSION

Pilaski has failed to support a claim of ineffective assistance of counsel. The prosecutor's expression of personal opinion did not prejudice Pilaski. The trial court properly gave an Allen charge to the jury and focused the jury on the inconsistencies in Small's testimony. It was not an abuse of discretion for the judge to allow a continuance for Small to reconsider taking the oath. There is sufficient evidence to sustain Pilaski's convictions on all counts. The district court's sentence was not an abuse of discretion. The judgment of the trial court is AFFIRMED.

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This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3