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United States v. Faulkenberry

filed: June 16, 1992.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
DARYL JAMES FAULKENBERRY, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Western District of Washington. D.C. No. CR-85-91-JET. Jack E. Tanner, District Judge, Presiding.

Before: Pregerson, Trott, and Kleinfeld, Circuit Judges.

MEMORANDUM

Daryl James Faulkenberry ("Faulkenberry") appeals his conviction and sentence under 18 U.S.C. §§ 1201 and 924(c) (1988) for kidnapping and use of a firearm. Faulkenberry argues that: (1) the district court erred in admitting evidence of his prior bad acts; (2) the court imposed an unlawful sentence; (3) the district court erred in admitting an allegedly suggestive out-of-court lineup; (4) the district court erred in denying his motion for substitution of counsel; and (5) his conviction should be reversed because of extensive delays in preparing the trial transcript for this appeal. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1) (1988). We reject each of Faulkenberry's arguments. The conviction and sentence are affirmed.

BACKGROUND

Faulkenberry was convicted of kidnapping and use of a deadly weapon connected with his abduction and rape of Christi Clark on September 4, 1985. After initially abducting Ms. Clark in Boise, Idaho, Faulkenberry drove with Ms. Clark through parts of Oregon and Washington. After this extended ordeal, Faulkenberry abandoned Ms. Clark and her truck in Vancouver, Washington.

Faulkenberry was arrested on September 6, 1985. At the time of his arrest, police found a pistol, a CB radio stolen from Ms. Clark's truck, and a note written by Christi Clark that he had taken from her during the ordeal.

On September 13, 1985, Christi Clark travelled to Vancouver to view a lineup. Faulkenberry's appointed counsel, James P. Swanger, was present at the lineup. Ms. Clark viewed the six white males in the lineup, and identified Faulkenberry from among them.

At trial, the government introduced testimonial evidence from two women who Faulkenberry had kidnapped and raped previously. The circumstances in those cases were significantly similar to Christi Clark's case. The commonalities include: use of a deadly weapon; demands for oral sex; raping the victims from behind; binding the victims; forcing one of the other victims to urinate in an empty container rather than use a bathroom; and calling his victims "girl" or "lady."

On the first day of trial, Faulkenberry's appointed attorney*fn1 moved to substitute counsel, stating that Faulkenberry was unhappy with the way he was handling the case.*fn2 The court denied the motion.*fn3

After Faulkenberry's jury conviction, the district Judge sentenced him to 300 years in prison, making him eligible for parole only after serving 99 years.

Discussion

I. PRIOR BAD ACTS

Faulkenberry argues that the evidence of his earlier misconduct was not probative of any relevant issue and was unfairly prejudicial. He further contends that limiting ...


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