United States v. Daniel Woolem

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 22, 2019
• Docket: 18-30032
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION APR 22 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-30032

Plaintiff-Appellee, D.C. No. 16-CR-2079-SAB-1

v. MEMORANDUM* DANIEL WOOLEM, AKA Daniel Wayne Woolem

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Washington Stanley A. Bastian, District Judge, Presiding

Submitted April 12, 2019** Seattle, Washington

Before: FLETCHER, CALLAHAN, and CHRISTEN, Circuit Judges.

Defendant-Appellant Daniel Woolem appeals his conviction for conspiracy

to distribute and distribution of methamphetamine in violation of 21 U.S.C. §§

841(a)(1), (b)(1)(A) and 846, and 21 U.S.C. § 841(a)(1) and (b)(1)(B). Woolem

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). presents interconnected claims of prosecutorial misconduct and ineffective

assistance of counsel. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we

affirm.1

When counsel fails to object at trial to acts of alleged prosecutorial

misconduct, we review for plain error. United States v. Hinton, 31 F.3d 817, 824

(9th Cir. 1994).

1. The prosecutor did not engage in improper vouching. “The prosecution

may not vouch for the credibility of its witnesses by ‘placing the prestige of the

government behind a witness through personal assurances of the witness’s

veracity’ or ‘suggesting that information not presented to the jury supports the

witness’s testimony.’” United States v. Dorsey, 677 F.3d 944, 953 (9th Cir. 2012)

(quoting United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993)).

We have consistently held that when the defense first attacks a witness’s

credibility, the prosecutor may ask the witness about the truthfulness requirements

of their plea agreement. See e.g., id. at 953–54; United States v. Monroe, 943 F.2d

1007, 1013 (9th Cir. 1991) (holding that “a reference to the ‘truthful testimony’

provisions of a witness’s agreement with the government does not constitute

1 Because the parties are familiar with the facts and arguments on appeal, we do not recite them here. 2 vouching if it is made in response to an attack on the witness’s credibility because

of his plea bargain”).

Here, not only did Woolem’s counsel attack the credibility of the

government’s witnesses during his opening statement his counsel’s cross

examination purposely elicited that the witness was receiving a reduced sentence in

exchange for his testimony and Woolem’s counsel moved to admit the entire plea

agreement into evidence. Only after these attacks on the witness’s credibility did

the prosecutor elicit further testimony about the witness’s understanding of the plea

agreement on re-direct. “When the defense opens a door, it should not be surprised

to see the prosecutor enter.” Dorsey, 677 F.3d at 954. We conclude that there was

no improper vouching.

2. The prosecutor did not ask Woolem to comment on the veracity of other

witnesses at trial. “A prosecutor must not ask defendants during cross-examination

to comment on the truthfulness of other witnesses.” United States v.

Alcantara-Castillo, 788 F.3d 1186, 1191 (9th Cir. 2015). “This rule is ‘black letter

law,’ and it ensures that determinations of credibility remain within the sole

province of the jury.” Id. (citation omitted) (quoting United States v. Harrison,

585 F.3d 1155, 1158 (9th Cir. 2009)).

3 The prosecutor’s questions here were not equivalent to asking Woolem to

comment on the truth or falsity of another witness. Our cases finding prosecutorial

misconduct involve questions that asked a defendant to comment directly on the

testimony of another witness. Cf. id. at 1192 (holding that “[y]our testimony is that

[they are] inventing stories about you; is that correct?” was improper); United

States v. Combs, 379 F.3d 564, 567 (9th Cir. 2004) (holding that “[s]o Special

Agent Bailey is making that up?” was improper).

3. We decline to consider Woolem’s ineffective assistance of counsel claims

on direct appeal. “As a ‘general rule,’ we ‘do not review challenges to the

effectiveness of defense counsel on direct appeal.’” United States v. McGowan,

668 F.3d 601, 605 (9th Cir. 2012) (quoting United States v. Moreland, 622 F.3d

1147, 1157 (9th Cir. 2010)). “Challenge by way of a habeas proceeding is

preferable because it permits the defendant to develop a record as to what counsel

did, why it was done, and what, if any, prejudice resulted.” Id. (internal quotations

omitted). Neither of our recognized exceptions for review applies. Accordingly,

we decline to address Woolem’s ineffective assistance of counsel claims without

prejudice to his raising them in a properly filed motion under 28 U.S.C. § 2255.

AFFIRMED.