                                                                            FILED
                            NOT FOR PUBLICATION                              JUL 16 2010

                                                                         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,                         Nos. 09-30233 & 09-30236

              Plaintiff–Appellee,                 D.C. Nos. 2:07-cr-00426-RSM-1
                                                         & 2:07-cr-00380-RSM-1
  v.

CHARLES JAMES WILLIAMS,                           MEMORANDUM *

              Defendant–Appellant.



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

                        Argued and Submitted June 9, 2010
                               Seattle, Washington

Before: CANBY, CALLAHAN and IKUTA, Circuit Judges.


       No. 09-30233:

       Charles James Williams pled guilty in the United States District Court for

the Western District of Washington to one count of possession of cocaine base

with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C).


        *
         This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Williams appeals, arguing that the district court, by “explicitly encouraging” him

to plead guilty, violated Federal Rule of Criminal Procedure 11(c)(1), which

forbids courts from participating in discussions to reach a plea agreement. See

Fed. R. Crim. P. 11(c)(1). Because Williams did not raise this claim in the district

court, we review for plain error. See United States v. Bruce, 976 F.2d 552, 554

(9th Cir. 1992).

      Nothing the district court said to Williams during the colloquy in question

constitutes plain error. See United States v. Olano, 507 U.S. 725, 734 (1993)

(explaining that “plain” is synonymous with “clear” and “obvious”). The colloquy

was extensive and dealt primarily with Williams’ dissatisfaction with his counsel,

asserted as trial was ready to begin. Actual plea bargaining was over; Williams

had rejected a government plea offer and no further offers were pending. The

district court in the colloquy reiterated Williams’s previous admissions that he had

made a series of bad choices. Williams stated that he was scared and added: “I

don’t care about time.” The court replied: “If that’s true, why don’t you just plead

straight up today? Why put yourself through this . . . .” This single response,

while improvident, was not clearly or obviously a violation of Rule 11(c)(1), nor in

these circumstances did it run afoul of the Rule’s purposes, namely, “to keep the

judge from shaping the plea bargain or persuading the defendant to accept


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particular terms, and to preserve judicial impartiality.” United States v. Frank,

36 F.3d 898, 902 (9th Cir. 1994); see also id. at 903 (“[Rule 11(c)(1)] does not

establish a series of traps for imperfectly articulated oral remarks.”). Here there

was no bargain in issue, and the court did not offer one; it merely pointed out one

option to Williams, for him to exercise or not. The court emphasized that the

choice was Williams’s.

      Even if we were to assume, as we do not, that the court’s remark violated

Rule 11(c)(1), there was no effect on Williams’s substantial rights as required for

reversal under plain error review. Williams has not shown “a reasonable

probability that, but for the error, he would not have entered the plea.” United

States v. Dominguez Benitez, 542 U.S. 74, 83 (2004). We accordingly affirm his

conviction.

      No. 09-30236:

      This appeal arises from a separate proceeding in which a jury tried and

convicted Williams of being a felon in possession of a firearm, in violation of

18 U.S.C. § 922(g)(1). Williams argues for reversal of that conviction on the

ground that the voir dire of a prospective juror conducted in his absence violated

his constitutional right to be present during jury impanelment. The record

indicates, however, that the district court employed a “blind strike” system of


                                           3
challenges, during which counsel for both sides exercised a peremptory challenge

to remove that prospective juror. Because the prosecutor’s blind strike prevented

the juror from sitting regardless of any action of Williams or his counsel, Williams

cannot have been prejudiced by his absence from the juror’s voir dire. Any error

was harmless beyond a reasonable doubt.

      Conclusion:

      The convictions in Nos. 09-30233 and 09-30236 are both

      AFFIRMED.




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