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NOT FOR PUBLICATION SEP 12 2012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-3

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 improperly vouched for the testimony of a

cooperating witness; (3) 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 (3) 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 F.3d 806, 813 (9th Cir. 2011) (internal quotation marks and citation omitted).

The record here does not indicate that the ICE agent committed perjury. The

ICE agent testified that Robert Boule, owner of the Smuggler’s Inn, told him that

he saw a woman carry a suitcase across the border from Canada and place it in a

car subsequently linked to James. The ICE agent’s notes are ambiguous and do not

clearly indicate one way or another whether it was Boule, or, as defendant argues, a

housekeeper, who saw this woman, nor whether it was only the person referenced

2 in his notes who saw these events. When defense counsel then tried to impeach the

agent with the undated second page of his notes, the ICE agent incorrectly

identified the notes as relating to an incident involving James’s co-conspirator that

had occurred six days prior. However, nothing in the record clearly demonstrates

that the ICE agent knowingly lied, rather than made a mistake, when he

misidentified the incident to which his notes referred. Moreover, since Boule

himself testified at trial, the mistake was immaterial. Accordingly, there is no plain

error that supports reversal.

James next argues that the district court improperly vouched for the

testimony of a cooperating witness when it denied defense counsel’s request to

strike the witness’s answer to the question, “Did the government make any

promises or guarantee what you would get for your cooperation,” to which the

cooperator replied, “There’s no promise, no guarantee, but my lawyer says, ‘If you

can tell the truth, you know, the judge will decide.’” This was followed by a

question from the prosecutor that elicited the response that the sentencing judge

was the same judge presiding at trial. Defense counsel objected at trial that “the

judge will decide” referred to the judge deciding whether the cooperator told the

truth and, when coupled with the next answer, implicitly suggested that the

presiding judge was vouching for the cooperator’s testimony. The district court

3 disagreed, finding that the cooperator was referring to who would decide his

sentence. We agree with the district court, and accordingly hold that the district

court did not abuse its discretion in denying the request to strike the testimony.

See United States v. Tran, 568 F.3d 1156, 1162 (9th Cir. 2009) (evidentiary rulings

are reviewed for abuse of discretion).

James also argues that during the voir dire the prosecutor impermissibly

vouched for the use of law enforcement ruses and for the credibility of cooperating

witnesses. As to the law enforcement ruses, the prosecutor gave an example of a

“sting operation” in which she participated in her prior role as a state prosecutor,

where police officers tricked people with outstanding arrest warrants into

appearing at the Tacoma Dome to collect a prize. As to the use of cooperators, the

prosecutor gave the example of Sammy “the Bull” Gravano, who cooperated with

the Government in its case against the notorious alleged mafiosi John Gotti, and

ultimately received a sentence of only five years in prison despite having killed

seventeen people. These personalized and vivid examples were unnecessary and

inappropriate, serving not so much to ferret out bias as to put the prosecutor’s own

views in play.

Nevertheless, because no objection was made during the voir dire, plain

error review applies. Under the high burden that plain error requires, we cannot

4 say that the prosecutor’s actions here “seriously affect[ed] the fairness, integrity or

public reputation of judicial proceedings.” United States v. Marcus, 130 S. Ct.

2159, 2166 (2010) (internal quotation marks and citation omitted). The prosecutor

did not vouch for the credibility of specific law enforcement officers or specific

actions in this case, nor did she vouch for the credibility of the cooperators who

testified against James. See, e.g., United States v. Kerr, 981 F.2d 1050, 1052–54

(9th Cir. 1992) (finding improper vouching and reversing for plain error where

prosecutor repeatedly told the jury during closing argument that he believed that

the four cooperators were telling the truth). Moreover, if a district court permits

the attorneys to conduct voir dire, a certain amount of personalization by counsel is

likely to occur. Under all the facts and circumstances, we hold that there was no

plain error in the voir dire.

Finally, James brings an ineffective assistance of counsel claim. “Claims of

ineffective assistance of counsel are generally inappropriate on direct appeal.”

United States v. McKenna, 327 F.3d 830, 845 (9th Cir. 2003). Rather, in most

instances, claims of ineffective assistance of counsel should be raised first in

collateral proceedings in the district court under 28 U.S.C. § 2255. See Massaro v.

United States, 538 U.S. 500, 504–05 (2003). We find no “extraordinary

exception” here justifying departure from the normal procedure. See United States

5 v. Jeronimo, 398 F.3d 1149, 1156 (9th Cir. 2005), overruled on other grounds by

United States v. Jacobo Castillo, 496 F.3d 947, 957 (9th Cir. 2007) (en banc). The

ineffective assistance of counsel claim is therefore dismissed without prejudice to

being raised in an appropriate subsequent proceeding.

AFFIRMED.

6

FILED

United States v. James, 11-30160 SEP 12 2012

MOLLY C. DWYER, CLERK

GOULD, Circuit Judge, concurring: U.S. COURT OF APPEALS

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 the defendant to show that a plain error

prejudiced the outcome of the district court proceedings and “seriously affect[ed]

the fairness, integrity or public reputation of judicial proceedings.” United States v. Marcus, 130 S.Ct. 2159, 2164 (2010) (internal quotations omitted). While this

voir dire is close to the line of what I would consider so inflammatory as to

preclude a fair trial, I conclude that in this direct appeal James did not meet his

burden of showing prejudice sufficient to satisfy the plain error standard.

However, this voir dire and the absence of objection by James's counsel are a

proper subject for an ineffective assistance of counsel claim in collateral

proceedings under 28 U.S.C. § 2255.