United States of America,plaintiff-Appellee v. David Daniel Thomas Wilkerson, Opinion

208 F.3d 794, 2000 Cal. Daily Op. Serv. 2585, 2000 Daily Journal DAR 3493, 2000 U.S. App. LEXIS 5997, 2000 WL 339760
CourtCourt of Appeals for the Ninth Circuit
DecidedApril 3, 2000
Docket98-50504
StatusPublished
Cited by59 cases

This text of 208 F.3d 794 (United States of America,plaintiff-Appellee v. David Daniel Thomas Wilkerson, Opinion) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States of America,plaintiff-Appellee v. David Daniel Thomas Wilkerson, Opinion, 208 F.3d 794, 2000 Cal. Daily Op. Serv. 2585, 2000 Daily Journal DAR 3493, 2000 U.S. App. LEXIS 5997, 2000 WL 339760 (9th Cir. 2000).

Opinions

Opinion by Judge D.W. NELSON; Dissent by FLETCHER.

D.W. NELSON, Circuit Judge:

David Daniel Thomas Wilkerson appeals his conviction by conditional guilty plea to one count of armed bank robbery under 18 U.S.C. § 2113(a)(d) and one count for use or carrying of a firearm during the commission of a crime of violence under 18 U.S.C. § 924(c).

I. Factual and Procedural Background

The charges stem from an incident where appellant Wilkerson, along with two co-defendants, stole a vehicle and then robbed the Edwards Federal Credit Union in Lancaster, California on December 16, 1997. On December 31, 1997, law enforcement officers, interviewed Wilkerson, who confessed his role in the robbery, and admitted to carrying a gun during the offense.

.Wilkerson was originally charged on January 20, 1998, with one co-defendant, under a two-count indictment consisting of one count of conspiracy in violation of 18 U.S.C. § 371 and one count of armed robbery of a federal credit union in violation of 18 U.S.C. § 2113(a)(d). A superseding indictment was filed shortly thereafter, charging all three of the alleged co-conspirators with the two counts set forth in the original indictment. On March 6, 1998, the government filed a second superseding indictment, which also added a charge for using or carrying a firearm during a crime of violence in violation of 18 U.S.C. § 924(c). Count one charged Wilkerson and two co-defendants with conspiring to commit a robbery of a federal credit union, in violation of 18 U.S.C. § 371. Count two charged the defendants with armed robbery of a credit union, in violation of -18 U.S.C. § 2113(a)(d). Count three charged the defendants with using or carrying a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c).

The § 924(c) charge was added after Judge Keller' criticized the government’s initial failure to charge Wilkerson for carrying a weapon during the robbery’s commission. Though he admitted carrying a gun, Wilkerson was initially only charged for armed robbery and conspiracy. At an initial status conference on February 17, 1998, after ascertaining the basic facts of the case, the following colloquy took place in which Judge Keller noted the omission:

The Court: Do you have a gun count in here?
The government: I’m sorry?
The Court: Why don’t you have a 924(c)? I’m just curious, from a charging standpoint.
The government: Your honor, at this point the guns were hot recovered.
The Court: So what? That leads me to the example of somebody, you know, I’m just going to rob banks next to a- lake or next to the ocean, and when I get through, there goes that gun in the lake, there it goes in the ocean, and the government is not going to charge me with a 924(c), because we didn’t recover the gun. And the answer is, so what? You’re' not telling me you try drugs cases without drugs, don’t you?
The government: That’s true, your hon- or.
The Court: Okay. So you are telling me you don’t try gun • cases without guns?
The Court: I’m going to tell you something. Do you see the ineonsisten-cy ?
The government: Yes, your Honor.
The Court: There is a major inconsistency there.

[797]*797A bit later in the conference, the Court commented on the government’s failure to include the § 924(c) charge, referring to the omission- as “absurd” and “asinine,” and told him to “[s]hare that with your head of [the] criminal [division].”

On March 13, 1998, Wilkerson filed a formal motion to recuse Judge Keller, claiming that Judge Keller’s asserted displeasure with the government for initially omitting the charge rendered Judge Keller biased and unable to be impartial. The motion was referred to Judge Byrne, who denied it on March 16, 1998, stating that Wilkerson failed to make the requisite factual showing of bias.

Wilkerson also filed a motion to dismiss the § 924(c) charge, contending that Judge Keller had essentially forced the government to file the charge. This motion was also denied by Judge Keller on March 16, 1998. That same day, Wilkerson reached a plea agreement, and eventually pled guilty to the armed robbery and gun charges, but expressly reserved his right to appeal the denied recusal and dismissal of charge motions. He was subsequently sentenced to 63 months for the armed robbery count and to 60 months for the gun charge to be followed by five years of supervised release. Wilkerson now appeals both the denial of recusal and the motions to dismiss. After a careful review of the entire record, we affirm the district court’s denial of Wilkerson’s motion for recusal and to dismiss the § 924(c) count.

II. Discussion

We review a district court’s decision whether to grant a motion for recusal for an abuse of discretion. United States v. Hernandez, 109 F.3d 1450, 1453 (9th Cir.1997). We also review a motion to dismiss an indictment to preserve judicial integrity under the same standard, as it is an exercise of the district court’s supervisory powers. United States v. Garza-Juarez, 992 F.2d 896, 905 (9th Cir.1993).

28 U.S.C. § 455(a) states that “[a]ny justice, judge or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be. questioned.” “[R]e-marks in a judicial context [must] demonstrate such pervasive bias and prejudice that [they] constitutef ] bias against a party.” King v. United States Dist. Court, 16 F.3d 992, 993 (9th Cir.1994). The test is “whether a reasonable person with knowledge of all the facts would conclude that the judge’s impartiality might reasonably be questioned.” Hernandez, 109 F.3d at 1453, quoting United States v. Studley, 783 F.2d 934, 939 (9th Cir.1986). Applying the standard set forth in Hernandez, we do not find that Judge Keller’s inquiry rose to the level required for recusal under 28 U.S.C. § 455(a), particularly in light of Wilkerson’s own admission that he carried a weapon during the robbery.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In re: Clifton Kerr
C.D. California, 2026
Drake Shelton v. Ur Jaddou
Ninth Circuit, 2024
Jackson v. Dutra
D. Nevada, 2024
(PC) Spencer v. Milan
E.D. California, 2023
(PC) Spencer v. Pulido-Esparza
E.D. California, 2023
(HC) Smith v. Clark
E.D. California, 2022
Ish v. United States
D. Idaho, 2022
(HC) Martin v. Pogue
E.D. California, 2022
United States v. Sean Morton
Ninth Circuit, 2020
United States v. Bigley
D. Arizona, 2019
Johnson v. Altamirano
S.D. California, 2019
HPC US Fund 1, L.P. v. Wood
182 F. Supp. 3d 1284 (S.D. Florida, 2016)
State v. Albert Ray Moore
319 P.3d 501 (Idaho Court of Appeals, 2014)
United States v. Angel Boza-Seas
553 F. App'x 755 (Ninth Circuit, 2014)
Elaine Marshall v. J. Marshall, Iii
721 F.3d 1032 (Ninth Circuit, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
208 F.3d 794, 2000 Cal. Daily Op. Serv. 2585, 2000 Daily Journal DAR 3493, 2000 U.S. App. LEXIS 5997, 2000 WL 339760, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-of-americaplaintiff-appellee-v-david-daniel-thomas-ca9-2000.