Unpublished Disposition, 899 F.2d 19 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 899 F.2d 19 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.Morris John BELGARDE a/k/a Maurice Belgarde, Defendant-Appellant.

No. 88-3290.

United States Court of Appeals, Ninth Circuit.

Submitted March 16, 1990.* Decided March 21, 1990.

Before JAMES R. BROWNING, ALARCON and POOLE, Circuit Judges.


MEMORANDUM** 

Morris John Belgarde appeals his conviction, following a jury trial for sexual abuse, in violation of 18 U.S.C. §§ 1153, 2242(1). His appellate counsel has filed a motion to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967). We have jurisdiction under 28 U.S.C. § 1291. We affirm, and grant counsel's motion to withdraw. Belgarde raises three claims of error.

* Jurisdiction

Belgarde contends that the district court lacked subject matter jurisdiction under 18 U.S.C. § 1153 because there is no proof of his Indian status, a jurisdictional prerequisite to a conviction under the statute. We review de novo questions of federal subject matter jurisdiction. See Mobil Oil Corp. v. City of Long Beach, 772 F.2d 534, 538 (9th Cir. 1985) (citation omitted).

Here, Belgarde's attorney stipulated as to Belgarde's Indian status. The statutory prerequisite for federal jurisdiction under 18 U.S.C. § 1153 is therefore satisfied, and thus the district court did not err by asserting subject matter jurisdiction over him. See United States v. Johnson, 637 F.2d 1224, 1229 n. 3 (9th Cir. 1980).

II

Sufficiency of the Evidence

Belgarde contends that there was insufficient evidence to convict him. A court should set aside the jury's verdict only if, viewing the evidence in the light most favorable to the government, any rational trier of fact would not have found the essential elements of a crime beyond a reasonable doubt. United States v. Johnson, 804 F.2d 1078, 1083 (9th Cir. 1986).

The only element of the crime of sexual abuse the jury was left to determine was whether Belgarde knowingly caused the victim to engage in sex by threatening her or placing her in fear. See 18 U.S.C. § 2242(1). The victim testified that Belgarde threatened her and slapped her. The victim's testimony was corroborated by testimony of the nurse and doctor who examined her after the rape. They observed that she was emotionally upset, and had abrasions on her body consistent with force. Belgarde testified that the victim voluntarily engaged in intercourse with him.

Upon weighing the evidence, the jury chose to believe the victim's testimony. The jury is free to make such credibility determinations. See Toomey, 764 F.2d at 681. The jury could infer from the evidence that the victim engaged in intercourse because Belgarde placed her in fear or threatened her. See Johnson, 804 F.2d at 1083. Viewing the evidence in the light most favorable to the government, the evidence was sufficient to convict Belgarde of sexual abuse under 18 U.S.C. § 2242(1). See id.

III

Ineffective Assistance of Counsel

Belgarde also contends that he was denied effective assistance of counsel at trial. A claim of ineffective assistance of counsel is a mixed question of law and fact which this court reviews de novo. United States v. Burrows, 872 F.2d 915, 917 (9th Cir. 1989) (citation omitted).

Under the two part test of Strickland v. Washington, 466 U.S. 668 (1984) an appellant must show that counsel's deficiencies prejudiced appellant so that the result of the trial is unreliable. See United States v. Claiborne, 870 F.2d 1463, 1468-69 (9th Cir. 1989).

Belgarde specifically claims that (1) counsel allowed him to testify about the events of the crime which caused him to be identified; (2) counsel failed to rebut with expert testimony the results of forensic serology tests performed on samples on Belgarde's body fluids which tended to identify him with the sexual abuse; (3) counsel entered a stipulation as to his Indian status when his race was not proven; and (4) counsel's investigation of the case was inadequate.

Belgarde has failed to demonstrate how he was prejudiced by his counsel's alleged ineffectiveness on the first two claims. The fact that Belgarde's attorney allowed him to testify did not prejudice him by identifying him with the crime, because at trial witnesses testified that they had seen him with the victim on the night of the crime. The fact that Belgarde's attorney failed to introduce expert testimony to rebut forensic serology tests tending to identify Belgarde with the sexual abuse also did not prejudice him because Belgarde testified that he had intercourse with the victim. Thus, Belgarde's first two claims of ineffective assistance of counsel are without merit. See Claiborne, 870 F.2d at 1468-69.

Belgarde's third and fourth claims of ineffective assistance of counsel require the development of facts outside the record and thus, they cannot be raised on direct appeal. See United States v. Wagner, 834 F.2d 1474, 1482 (9th Cir. 1987) (citations omitted).

IV

Motion to Withdraw

Belgarde's appellate counsel has filed a motion to withdraw and has submitted a brief pursuant to Anders v. California, 386 U.S. 738, 744 (1967), identifying no potentially appealable issues that are nonfrivolous. Before acting on counsel's motion to withdraw, this court undertook its own examination of the record to determine whether counsel's examination of the record was sound. See Penson v. Ohio, 109 S. Ct. 346, 351 (1988).

In his Anders brief, Belgarde's counsel has identified no potentially appealable issues, with the exception of Belgarde's ineffective assistance of counsel claim. An independent review of the record satisfies us that counsel's evaluation of the case was sound. See id. We therefore grant counsel's Anders motion to withdraw.

AFFIRMED.

 *

The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

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