United States v. Maleek James

MEMORANDUM **

Maleek James appeals from his jury conviction for conspiracy to import and distribute ecstasy, possession of ecstasy with intent to distribute, and aiding and abetting the importation of ecstasy. He contends that: (1) the government agent who testified at his trial committed perjury; (2) the district court improperly vouched for the testimony of a cooperating witness; (8) the prosecutor committed misconduct in the voir dire; and (4) he received ineffective assistance of counsel. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm the conviction.

James first argues that the Immigrations and Customs Enforcement (“ICE”) agent who testified against him at trial committed perjury. To reverse a conviction due to perjury, a defendant must show that “(1) the testimony (or evidence) was actually false, (2) the prosecution knew or should have known that the testimony was actually false, and (8) the false testimony was material.” Jackson v. Brown, 513 F.3d 1057, 1071-72 (9th Cir.2008). Because defendant did not raise this perjury argument at trial, we review for plain error only. United States v. Houston, 648 *747 F.3d 806, 813 (9th Cir.2011) (internal quotation…

concurring:

I concur in the memorandum disposition. But I do so with significant reservations because of what I consider an entirely improper jury voir dire conducted by the prosecutor. The record here did not show charges of violent conduct or use of firearms in the drug importing conspiracy. Importing ecstacy into the United States is a serious crime, but James entered this trial with a presumption of innocence until proven guilty beyond a reasonable doubt. Although I do not believe that the prosecutor acted in subjective bad faith, I can see no proper justification for introducing at voir dire the images of notorious mob boss John Gotti and murderous mob enforcer Sammy “The Bull” Gravano. The jury panel, as a result of the prosecutor’s questions, might have thought that James’s alleged crimes involved organized crime or violence comparable to mob executions, even though those things were not charged.

To my thinking, the prosecutor’s use of these images during jury voir dire was incorrect and threatened the fairness of trial. But, as the disposition explains, we must review for plain error because James’s counsel did not object to this questioning. Plain error review requires…

FILED

NOT FOR PUBLICATION SEP 12 2012

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 11-30160

Plaintiff-Appellee, D. C. No. 2:09-cr 00427-RSM-

v.

MEMORANDUM*

MALEEK JAMES,

Defendant-Appellant.

Appeal from the United States District Court for the Western District of Washington Ricardo S. Martinez, District Judge, Presiding

Argued and Submitted August 31, 2012 Seattle, Washington

Before: SCHROEDER and GOULD, Circuit Judges, and RAKOFF, Senior District Judge.**

Maleek James appeals from his

jury conviction for conspiracy to import and distribute ecstasy, possession of

ecstasy with intent to distribute, and aiding and abetting the importation of ecstasy.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Jed S. Rakoff, Senior District Judge for the Southern District of New York, sitting by designation. He contends that: (1) the government agent who testified at his trial committed

perjury; (2) the district court…