                                                                           FILED
                           NOT FOR PUBLICATION                              SEP 16 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-10280

              Plaintiff - Appellee,              DC No. 3:09-cr-00786-JSW-1

  v.
                                                 MEMORANDUM *
 JOHNNY M. WILLIAMS,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Northern District of California
                     Jeffrey S. White, District Judge, Presiding

                             Submitted July 20, 2011 **
                             San Francisco, California

Before:       HUG and RAWLINSON, Circuit Judges, and RAKOFF, Senior
              District Judge.***




       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

       **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
       * **
            The Honorable Jed S. Rakoff, Senior United States District Judge for
the Southern District of New York, sitting by designation.
       On March 11, 2010, a jury convicted defendant-appellant Johnny M.

Williams (“Williams”) of being a felon in possession of a firearm in violation of 18

U.S.C. § 922(g)(1). The district court (White, J.) imposed a sentence of 120

months’ imprisonment. Williams now appeals his conviction, contending that the

district court erred by: (1) failing to sua sponte instruct the jury on the defense of

justification; (2) repeating the Ninth Circuit's model jury instructions in response to

jury questions; (3) instructing the jury that Williams was impeachable with a prior

felony conviction; (4) maintaining the jury as constituted following the

Government’s errant use of an alternate peremptory strike against a seated juror;

and (5) allegedly violating the provisions of the Speedy Trial Act. We affirm the

district court in all respects.

       Taking these issues in turn, the Court first considers Williams’s argument

that the district court erred by failing to sua sponte instruct the jury on a

justification defense after his trial counsel affirmatively disavowed any intention to

rely upon such a defense before the trial began. Where a defendant fails to

properly object to a jury instruction or to an omission from a jury instruction, this

Court reviews for plain error. United States v. Fuchs, 218 F.3d 957, 961 (9th Cir.

2000). “A trial court commits plain error when (1) there is error, (2) that is plain,

and (3) the error affects substantial rights.” Id. at 962. If a defendant "actually


                                            2
presents and relies upon a theory of defense at trial," the trial court "must instruct

the jury on that theory," even in the absence of a request by the defendant, if there

is a foundation for the defense in the evidence and the law. United States v. Bear,

439 F.3d 565, 568 (9th Cir. 2006). However, no error occurs if the defendant did

not actually rely on the defense, even if the defense could have been raised. United

States v. Span, 970 F.2d 573, 578 (9th Cir. 1992). In this case, Williams’s counsel

affirmatively disavowed any intention to present a justification defense, never

suggested that Williams was justified in possessing the gun, and attempted instead

to negate the possession element of the crime. The district court did not err, much

less plainly err, in declining to sua sponte instruct the jury on a justification

defense under these circumstances.

      Second, the "trial judge, as ‘governor of the trial,' enjoys ‘wide discretion in

the matter of charging the jury.'" Arizona v. Johnson, 351 F.3d 988, 994 (9th Cir.

2003) (citations omitted). Moreover, "[b]ecause the jury may not enlist the court

as its partner in the factfinding process, the trial judge must proceed circumspectly

in responding to inquiries from the jury." Id. In this case, because the terms

“possession” and “knowingly” are clearly defined in the Ninth Circuit's model jury

instructions, the district court did not abuse its discretion by repeating those

instructions in response to jury questions concerning the meaning of those terms.


                                            3
      Third, the district court did not abuse its discretion by instructing the jury

that Williams’s 2007 felony conviction could be considered for the purposes of

impeachment. Federal Rule of Evidence 609(a) provides, in pertinent part, that

evidence of prior convictions is admissible for attacking the credibility of a witness

if the crime "was [a felony], and the court determines the probative value of

admitting this evidence outweighs its prejudicial effect to the defendant." United

States v. Alexander, 48 F.3d 1477, 1488 (9th Cir. 1995). This Court has outlined

five factors that should be considered in balancing the probative value of a prior

conviction against its prejudicial impact under Fed. R. Evid. R. 609. Id. Although

"a trial court need not analyze each of the five factors explicitly, the record should

reveal, at a minimum, that the trial judge was aware of the requirements of Rule

609(a)(1)." United States v. Martinez-Martinez, 369 F.3d 1076, 1088 (9th Cir.

2004) (interal quotation marks omitted). In this case, the district court stated on

the record that it had reviewed the factors set forth in Alexander. Moreover, we

agree with the district court that a consideration of the pertinent factors weighed in

favor of admitting the conviction in this case. Finally, because a 1990 amendment

to Rule 609(a) "remove[d] from the rule the limitation that the conviction may only

be elicited during cross-examination," Fed. R. Evid. 609 advisory committee's note




                                           4
(1990), it is irrelevant that the conviction came in pursuant to the parties'

stipulation rather than through cross-examination.

       Fourth, while Federal Rule of Criminal Procedure 24(c) “does not permit the

combining of regular and alternate peremptory challenges, and we do not condone

the practice, . . . it is not reversible error unless prejudice is shown." United States

v. Balk, 706 F.2d 1056, 1059 (9th Cir. 1983). In this case, Williams has not shown

that he suffered any prejudice as a result of the district court’s decision to maintain

the jury as constituted following the Government’s errant use of an alternate

peremptory strike against a seated juror, especially in light of the fact that the

district court had allowed defense counsel to correct a similar mistake.

       Finally, the "[f]ailure of the defendant to move for dismissal prior to trial or

entry of a plea of guilty or nolo contendere shall constitute a waiver of the right to

dismissal under [the Speedy Trial Act]." 18 U.S.C. § 3162(a)(2). Accordingly,

Williams waived his argument concerning the Speedy Trial Act by not asserting it

prior to trial.

       We have considered the appellant’s additional arguments and conclude that

they lack merit.

       AFFIRMED.




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