Unpublished Disposition, 880 F.2d 1324 (9th Cir. 1987)

MEMORANDUM^** 

On June 5, 1978, Clarence E. Jones was convicted of aiding and abetting a bank robbery in violation of 18 U.S.C. § 2 and 18 U.S.C. § 2113(a) (Count One), and of aiding and abetting the use of a dangerous weapon in committing the robbery in violation of 18 U.S.C. § 2 and 18 U.S.C. § 2113(d) (Count Two), and was sentenced to twelve years imprisonment. On direct appeal, we reversed the judgment on Count Two for insufficiency of evidence and directed the district court to resentence Jones on Count One. United States v. Jones, 592 F.2d 1038, 1042 (9th Cir.), cert. denied, 441 U.S. 951 (1979). On remand, the district court again sentenced Jones to twelve years imprisonment.

On January 22, 1987, Jones filed a motion under 28 U.S.C. § 2255, raising issues of ineffective assistance of counsel, improper jury instructions, unfair presence of a codefendant, and double jeopardy. On June 15, 1987, the district court denied the motion. Jones appeals pro se. We affirm.

Jones makes various allegations suggesting that the assistance of his trial counsel, Michael Tryon, was ineffective. We review de novo the question of whether counsel was ineffective. United States v. Birtle, 792 F.2d 846, 847 (9th Cir. 1986).

As the Supreme Court has noted,

[j]udicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.

Strickland v. Washington, 466 U.S. 668, 689 (1984). Indeed, " [t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 686. In other words, not only must the defendant show that counsel's errors were so serious "that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," but must also show that the deficient performance actually prejudiced the defendant. Id. at 687.

Jones asserts that Tryon did not understand the applicable substantive law. At trial, Jones presented an alibi defense that he was present in Traffic Court at the time of the robbery and thus was not the driver of the getaway car. In fact, Tryon introduced witnesses to support the alibi.

Jones also argues that Tryon erred in not objecting to the trial court's refusal to reread certain testimony. This contention lacks merit since the trial court "enjoys a great deal of discretion" in this decision, United States v. Nolan, 700 F.2d 479, 486 (9th Cir.), cert. denied, 462 U.S. 1123 (1983), and there is no abuse of discretion.

In summary, " [c]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690. Jones has not overcome this presumption. Indeed, Jones has not met his burden of identifying specific "acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment." Id.

Jones next raises challenges to the jury instructions. Jury instructions are reviewed for an abuse of discretion. United States v. Echeverry, 759 F.2d 1451, 1455 (9th Cir. 1985). We consider all the jury instructions as a whole in deciding whether instructions are misleading or inadequate. United States v. Burgess, 791 F.2d 676, 678 (9th Cir. 1986).

Considering the instructions as a whole, the jury was properly instructed that the government had the burden of proof beyond a reasonable doubt. There was no burden placed upon the defendant to prove his innocence.

Jones also argues that the instruction which defined "aid and abet" was confusing. We find no abuse of discretion in the formulation of this instruction.

Jones' next contention is that the presence of codefendant George White during the trial deprived him of a fair trial. At trial, Jones never raised an objection to White's presence.

The presence of a codefendant at trial does not constitute "plain error." See United States v. Frady, 456 U.S. 152, 163-64 (1982). Further, White's presence was not prejudicial to Jones. In fact, Jones called White as a defense witness and White confessed to the crime and testified that Jones was not involved. Furthermore, the failure of counsel Tyron to object to the presence of White does not constitute ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668 (1984).

Finally, Jones argues that when the district court resentenced him on remand, this violated the Double Jeopardy Clause of the United States Constitution. We review double jeopardy claims de novo. United States v. Martinez, 785 F.2d 663, 665 (9th Cir. 1985).

We have previously ruled that

[t]he double jeopardy clause does not prohibit resentencing. Nor does it absolutely prevent an increase in the original sentence on retrial following a reversal of a conviction.

Knapp v. Caldwell, 667 F.2d 1253, 1263 (9th Cir.), cert. denied, 459 U.S. 1055 (1982).¹  Accordingly, the resentencing of Jones was not in violation of the Double Jeopardy Clause.

AFFIRMED.