IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

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Nos. 00-40242 and 00-40243

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WILTON DAVID WALLACE,

Defendant-Appellant.

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Appeals from the United States District Court for the Southern District of Texas (G-98-0013 and G-98-0015) _________________________________________________ February 12, 2001

Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM*:

Defendant-Appellant Wilton David Wallace was convicted in each

of these two cases of civil rights violations for physically

abusing inmates at the Brazoria County Detention Center, where he

was a jailer guarding Missouri inmates for private prison company

Capital Correctional Resources, Inc. In the first case, No. 00-

40242 (“the Hawthorne case”), a jury convicted Wallace of a

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. misdemeanor violation of

. Wallace was videotaped

kicking Missouri inmate Toby Hawthorne in the head and groin as he

crawled down a hallway on the orders of prison guards during a

cellblock search on September 18, 1996. In the second case, No.

00-40243 (“the Fisher case”), Appellant was convicted by a jury of

a felony violation of § 242 for assaulting Clarence Fisher, another

Missouri inmate, on November 7, 1996. Appellant slammed Fisher’s

face into the wall, knocking out one of his teeth and cutting his

lip severely enough to require stitches. Wallace appeals his

convictions on four grounds that apply to both cases and on a fifth

claim of error arising only from the Fisher case.

First, Wallace claims that the district court abused its

discretion by refusing to give his proferred jury instruction

regarding a good faith defense to § 242. We have held that “a

district court may refuse to submit an instruction regarding good

faith if the defense of good faith is substantially covered by the

charge given and the defendant has had the opportunity to argue

good faith to the jury.”1 We find that Wallace’s proffered jury

instruction was substantially covered in the charge as a whole and

did not impair his ability to present a defense. We reject

Wallace’s first point of error.

Second, Wallace contends that the district court abused its

discretion by admitting during both trials evidence of his 1987

1 United States v. Giraldi,

(5th Cir. 1996).

2 misdemeanor conviction of violating § 242, and also by admitting

during the Fisher trial evidence of his conviction under the same

statute in the Hawthorne case.2 We find that Wallace waived any

objection to the admission of his prior conviction during the

Hawthorne trial by “opening the door” to the evidence.3 More

importantly, we conclude that in both cases, evidence of the prior

convictions was correctly admitted under Fed. R. Civ. P. 404(b) to

prove Wallace’s specific intent, absence of mistake, and knowledge

that use of unjustifiable force against the inmates was unlawful.4

Third, Wallace argues that the district court abused its

discretion by denying his motion to recuse in both trials. This

complaint is based on comments in the Hawthorne trial that the

court made in chambers to attorneys for Wallace and the government

after the case had gone to the jury and during its deliberations.

The court expressed a concern regarding whether Wallace, his

attorney, and his expert witness may have conspired to present

2 Appellant was convicted in the Hawthorne case on Oct. 9, 1999, and in the Fisher case on Oct. 29, 1999. 3 See Ohler v. United States,

,

(2000); United States v. Archer,

(5th Cir. 1984). At trial, Wallace’s counsel asked a witness on cross-examination if the witness was aware of the prior conviction. Wallace did not object when the government presented evidence of his prior conviction through its next witness. 4 See, e.g., United States v. Beechum,

(5th Cir. 1978) (en banc).

3 perjured testimony. The judge made no comment on this matter

before the jury. We find that the judge’s statements were within

the ambit of “opinions formed by the judge on the basis of facts

introduced or events occurring in the course of the current

proceedings.”5 The court’s in-chambers attempt to address concerns

regarding the veracity of Wallace’s expert witness and possible

conspiracy of counsel and the defendant with that witness does not

raise a serious question about the court’s appearance of

impartiality or any “deep-seated . . . antagonism” toward Wallace.6

We reject Wallace’s third point of error.

Wallace’s fourth claim of error arises from the same

controversy that led to his motion to recuse. He argues that he

was denied the right to effective assistance of counsel because his

counsel during both trials had a conflict of interest stemming from

the court’s concern regarding a possible perjury conspiracy. Under

Strickland v. Washington, prejudice is presumed “if the defendant

demonstrates that counsel ‘actively represented conflicting

interests’ and that ‘an actual conflict of interest adversely

affected his lawyer’s performance.’”7 Even assuming that an actual

5 Liteky v. United States,

(1994). 6 Id.; see also Garcia v. Woman’s Hosp.,

(5th Cir. 1998); United States v. Wilson,

(5th Cir. 1996). 7 Strickland v. Washington,

(1984) (quoting Cuyler v. Sullivan,

(1980)); see also United States v. Greig,

(5th Cir. 1992) (stating that criminal defendant’s right to effective assistance

4 conflict of interest existed here, we find that Wallace failed to

demonstrate any specific way in which the conflict adversely

affected his counsel’s performance in either case. Therefore, we

reject Wallace’s claim of ineffective assistance of counsel

grounded in the assertion of conflict of interest.

In his final claim of error, which applies only to the Fisher

case, Wallace argues that his conviction was improper because he

was not acting under color of Texas law. We find that when Wallace

attacked Fisher, he was acting in his capacity as a jailer guarding

inmates imprisoned in compliance with Texas law. He has presented

no convincing evidence to show that he was not acting under color

of law within the meaning of § 242. Therefore, we reject his fifth

and final claim.

We conclude that each of these contentions is without merit,

and therefore affirm both of Wallace’s convictions.

AFFIRMED.

of counsel “includes the right to representation free from a conflict of interest”).

5