United States v. Wilson

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 2, 1998
• Docket: 97-8069
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS APR 2 1998 TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-8069 (Dist. of Wyoming) JOHN HENRY WILSON, aka Pete (D.C. No. 96-CR-78-3) Wilson; aka Uncle Pete; aka Pistol Pete,

Defendant-Appellant.

ORDER AND JUDGMENT *

Before BRORBY, BRISCOE, and MURPHY, Circuit Judges.

Defendant John Henry Wilson appeals his convictions for conspiracy to

receive, possess, and transport stolen firearms in violation of 18 U.S.C. § 371 and

receipt and possession of stolen firearms in violation of 18 U.S.C. § 922(j).

Appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967), noting his belief that there were no meritorious appellate issues and

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. requesting that this court allow him to withdraw from the case. Nevertheless,

consistent with the dictates of Anders, counsel identified the following two

arguments which Wilson wished to raise on appeal: (1) the testimony of three

juvenile witnesses was insufficient to prove his guilt beyond a reasonable doubt;

and (2) he did not receive a jury of his peers. This court exercises jurisdiction

pursuant to 28 U.S.C. § 1291 and, after due consideration and an independent

review of the record, grants counsel’s motion to withdraw and affirms Wilson’s

convictions.

As his first issue on appeal, Wilson asserts that he did not receive a fair

trial by an unbiased jury of his peers. In his Anders’ brief, defense counsel notes

that he was also trial counsel and did not discern any irregularity in the jury

selection. Counsel also notes that the sole ground upon which Wilson bases his

claim of a biased jury is that Wilson was ultimately convicted. For its part, the

United States asserts that Wilson waived any claim that the jury in his case did

not represent a fair cross section of the community when he failed to object to the

composition or selection of this jury prior to trial. We agree that Wilson has

waived his dubious claim of irregularity in the jury selection process by failing to

raise it in the district court. See 28 U.S.C. § 1867(a) (providing that any

challenge to the selection process for petit juries must be made before voir dire

examination begins); United States v. Bedonie, 913 F.2d 782, 794 (10th Cir.

-2- 1990) (holding that a claim or irregularity in the process of selecting a petit jury

cannot be raised for the first time on appeal). Furthermore, although the record

does not contain a transcription of the voir dire of potential jurors, an independent

review of the entire record before this court on appeal reveals nothing that would

suggest the jury here was anything but impartial.

Wilson also contends that the testimony presented to the jury was

insufficient to prove his guilt beyond a reasonable doubt. This argument is

without merit. “In reviewing the sufficiency of evidence to sustain a jury’s guilty

verdict, we examine the evidence in the light most favorable to the government in

order to determine whether the evidence . . . together with all reasonable

inferences to be drawn therefrom, is substantial enough to establish guilt.”

United States v. Johnson, 42 F.3d 1312, 1319 (10th Cir. 1994) (quotations

omitted). In conducting a review for sufficiency of the evidence, this court does

not function as a jury but, instead, accepts the jury’s resolution of conflicting

evidence and resolves all credibility choices in favor of the jury’s ultimate

verdict. United States v. Pappert, 112 F.3d 1073, 1077 (10th Cir. 1997); United

States v. Horn, 946 F.2d 738, 741 (10th Cir. 1991).

With the above standard in mind, Wilson’s claim is easily resolved.

Although Wilson testified at trial that he never agreed to transport stolen firearms

and did not, in fact, transport any stolen firearms, the United States presented the

-3- testimony of three juvenile witnesses to the contrary. The first witness testified

that Wilson stood by while the stolen firearms were placed in his truck and that

Wilson then got in his truck and drove away. The second witness testified that he

overheard Wilson agree to take the stolen firearms to Denver. The third witness

testified that he overheard Wilson agree to transport the stolen firearms to his

residence. Furthermore, the testimony of the three juvenile witnesses was

corroborated by the fact that the stolen weapons were discovered during the

execution of a search warrant at Wilson’s residence. Thus, although the

testimony of the juveniles contradicted the testimony of Wilson, the jury

obviously concluded that it was the juveniles, rather than Wilson, who were

telling the truth. So credited, this evidence more than adequately proved the

United States’ case beyond a reasonable doubt.

The judgment of conviction is hereby AFFIRMED. Counsel’s motion to

withdraw pursuant to Anders is hereby GRANTED.

ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge

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