United States v. Tony Richard Casanova

642 F.2d 300, 1981 U.S. App. LEXIS 14260, 8 Fed. R. Serv. 131

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 16, 1981
• Docket: 79-1789
• Status: Published

Opinions

PER CURIAM:

We affirm appellant’s conviction of aiding and abetting the robbery of a savings and loan association.

Appellant asserts he was denied effective assistance of counsel because his attorney (1) “represented to the court prior to the commencement of trial that the attorney-client relationship had completely broken down, but did not make a record of the factual bases supporting this assertion”; (2) “did not renew a motion to continue or be relieved as counsel after being apprised in open court ... of a defense based on the involuntariness of defendant’s acts”; and (3) “failed to present any defense whatsoever although apprised of a possible defense based on the involuntariness of defendant’s acts and the availability of one or more witnesses to testify thereto.”

The record does not establish ineffective assistance of counsel under the standards announced in Cooper v. Fitzharris, 586 F.2d 1325 (9th Cir. 1978) (en banc). As to the first claim, trial counsel appeared to be fully familiar with the facts and applicable law; there is nothing in the record to support the suggestion that counsel’s failure to make a more specific factual showing in support of his assertion that communication between himself and his client had broken down was based upon anything other than an absence of any basis for such a showing. Moreover, appellant’s new counsel in this appeal has noted that even he could “only speculate” as to what such facts would be.¹ As to the second and third claims, so far as this record shows defense counsel’s course of conduct in challenging the adequacy of the government’s evidence identifying appellant as the perpetrator of the offense, rather than undertaking to present an affirmative defense of involuntariness, was a reasonable choice among available trial strategies.

Appellant also asserts that he was impermissibly prejudiced by the admission of testimony concerning his involvement in two prior robberies, and that there was insufficient evidence to support his conviction.

The district court did not abuse its discretion in concluding that the probative value, on the issue of appellant’s knowledge and intent, of evidence that appellant had committed two similar robberies within a month prior to the offense charged outweighed any improper prejudicial effect of this evidence.

The evidence of guilt was adequate. The testimony of an accomplice, if believed, is sufficient to sustain a conviction. United States v. Williams, 435 F.2d 642, 646 (9th Cir. 1970). In any event, the accomplice’s testimony was corroborated by the testimony of two other witnesses.

AFFIRMED.

1 . We express neither agreement nor disagreement with our dissenting brother’s analysis of the trial court’s compliance with United States v. Mills, 597 F.2d 693 (9th Cir. 1979). The issue is not properly before us. It was not raised by appellant, nor is reversal “necessary to avoid a miscarriage of justice or to preserve the integrity or reputation of the judicial process.” United States v. Licavoli, 604 F.2d 613, 623 (9th Cir. 1979).