United States v. Wallace ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________________
Nos. 00-40242 and 00-40243
_______________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILTON DAVID WALLACE,
Defendant-Appellant.
_________________________________________________
Appeals from the United States District Court
for the Southern District of Texas
(G-98-0013 and G-98-0015)
_________________________________________________
February 12, 2001
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM*:
Defendant-Appellant Wilton David Wallace was convicted in each
of these two cases of civil rights violations for physically
abusing inmates at the Brazoria County Detention Center, where he
was a jailer guarding Missouri inmates for private prison company
Capital Correctional Resources, Inc. In the first case, No. 00-
40242 (“the Hawthorne case”), a jury convicted Wallace of a
*
Pursuant to 5th Cir. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5th Cir. R.
47.5.4.
misdemeanor violation of 18 U.S.C. § 242. Wallace was videotaped
kicking Missouri inmate Toby Hawthorne in the head and groin as he
crawled down a hallway on the orders of prison guards during a
cellblock search on September 18, 1996. In the second case, No.
00-40243 (“the Fisher case”), Appellant was convicted by a jury of
a felony violation of § 242 for assaulting Clarence Fisher, another
Missouri inmate, on November 7, 1996. Appellant slammed Fisher’s
face into the wall, knocking out one of his teeth and cutting his
lip severely enough to require stitches. Wallace appeals his
convictions on four grounds that apply to both cases and on a fifth
claim of error arising only from the Fisher case.
First, Wallace claims that the district court abused its
discretion by refusing to give his proferred jury instruction
regarding a good faith defense to § 242. We have held that “a
district court may refuse to submit an instruction regarding good
faith if the defense of good faith is substantially covered by the
charge given and the defendant has had the opportunity to argue
good faith to the jury.”1 We find that Wallace’s proffered jury
instruction was substantially covered in the charge as a whole and
did not impair his ability to present a defense. We reject
Wallace’s first point of error.
Second, Wallace contends that the district court abused its
discretion by admitting during both trials evidence of his 1987
1
United States v. Giraldi, 86 F.3d 1368, 1376 (5th Cir.
1996).
2
misdemeanor conviction of violating § 242, and also by admitting
during the Fisher trial evidence of his conviction under the same
statute in the Hawthorne case.2 We find that Wallace waived any
objection to the admission of his prior conviction during the
Hawthorne trial by “opening the door” to the evidence.3 More
importantly, we conclude that in both cases, evidence of the prior
convictions was correctly admitted under Fed. R. Civ. P. 404(b) to
prove Wallace’s specific intent, absence of mistake, and knowledge
that use of unjustifiable force against the inmates was unlawful.4
Third, Wallace argues that the district court abused its
discretion by denying his motion to recuse in both trials. This
complaint is based on comments in the Hawthorne trial that the
court made in chambers to attorneys for Wallace and the government
after the case had gone to the jury and during its deliberations.
The court expressed a concern regarding whether Wallace, his
attorney, and his expert witness may have conspired to present
2
Appellant was convicted in the Hawthorne case on Oct. 9,
1999, and in the Fisher case on Oct. 29, 1999.
3
See Ohler v. United States, 529 U.S. 753, 120 S. Ct.
1851, 1853 (2000); United States v. Archer, 733 F.2d 354, 361
(5th Cir. 1984). At trial, Wallace’s counsel asked a witness on
cross-examination if the witness was aware of the prior
conviction. Wallace did not object when the government presented
evidence of his prior conviction through its next witness.
4
See, e.g., United States v. Beechum, 582 F.2d 898, 911
(5th Cir. 1978) (en banc).
3
perjured testimony. The judge made no comment on this matter
before the jury. We find that the judge’s statements were within
the ambit of “opinions formed by the judge on the basis of facts
introduced or events occurring in the course of the current
proceedings.”5 The court’s in-chambers attempt to address concerns
regarding the veracity of Wallace’s expert witness and possible
conspiracy of counsel and the defendant with that witness does not
raise a serious question about the court’s appearance of
impartiality or any “deep-seated . . . antagonism” toward Wallace.6
We reject Wallace’s third point of error.
Wallace’s fourth claim of error arises from the same
controversy that led to his motion to recuse. He argues that he
was denied the right to effective assistance of counsel because his
counsel during both trials had a conflict of interest stemming from
the court’s concern regarding a possible perjury conspiracy. Under
Strickland v. Washington, prejudice is presumed “if the defendant
demonstrates that counsel ‘actively represented conflicting
interests’ and that ‘an actual conflict of interest adversely
affected his lawyer’s performance.’”7 Even assuming that an actual
5
Liteky v. United States, 510 U.S. 540, 555 (1994).
6
Id.; see also Garcia v. Woman’s Hosp., 143 F.3d 227, 230
(5th Cir. 1998); United States v. Wilson, 77 F.3d 105, 111 (5th
Cir. 1996).
7
Strickland v. Washington, 466 U.S. 668, 692 (1984)
(quoting Cuyler v. Sullivan, 446 U.S. 335, 350 (1980)); see also
United States v. Greig, 967 F.2d 1018, 1021 (5th Cir. 1992)
(stating that criminal defendant’s right to effective assistance
4
conflict of interest existed here, we find that Wallace failed to
demonstrate any specific way in which the conflict adversely
affected his counsel’s performance in either case. Therefore, we
reject Wallace’s claim of ineffective assistance of counsel
grounded in the assertion of conflict of interest.
In his final claim of error, which applies only to the Fisher
case, Wallace argues that his conviction was improper because he
was not acting under color of Texas law. We find that when Wallace
attacked Fisher, he was acting in his capacity as a jailer guarding
inmates imprisoned in compliance with Texas law. He has presented
no convincing evidence to show that he was not acting under color
of law within the meaning of § 242. Therefore, we reject his fifth
and final claim.
We conclude that each of these contentions is without merit,
and therefore affirm both of Wallace’s convictions.
AFFIRMED.
of counsel “includes the right to representation free from a
conflict of interest”).
5