U.S. v. Martinez, 85-1146X

• Decision Date: 10 March 1986
• Docket Number: No. 85-1146X,85-1146X
• Citation: 785 F.2d 663
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Franke Eugenio MARTINEZ, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 663

785 F.2d 663

UNITED STATES of America, Plaintiff-Appellant, v. Franke Eugenio MARTINEZ, Defendant-Appellee.

No. 85-1146X.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 4, 1985.

Decided March 10, 1986.

Robert J. Erickson, U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellant.

Kenneth A. Padilla, Denver, Colo., Michael E. Tigar, Austin, Tex., William M. Kunstler, New York City, for defendant-appellee.

Appeal from the United States District Court for the District of Arizona.

Before BROWNING, SNEED, and HUG, Circuit Judges.

SNEED, Circuit Judge:

The government appeals from the district court's dismissal of an indictment of Franke Martinez on the ground that the indictment had impermissibly retained the appearance of vindictive prosecution. We reverse.

I. FACTS AND PROCEEDINGS BELOW

In 1973, appellee Franke Martinez, a Colorado attorney, was indicted for allegedly mailing letter bombs, for possessing explosive devices, and for conspiring to do so. He left the state to avoid apprehension and remained a fugitive until September 3, 1980, when he crossed the border in Nogales, Arizona to return to the United States. Upon being questioned by a customs inspector, he identified himself as "Jose Reynoso-Diaz," a United States citizen. After further interrogation, one inspector found a Mexican passport in Martinez's possession. The passport bore Martinez's photograph and identified him as Jose Reynoso-Diaz, a Mexican citizen. At that point Martinez ran out of the door of the building in which he was being interrogated. He was apprehended after a short scuffle in the United States about 200 yards from the Mexican border. The customs officials turned him over to INS officers, who administered the Miranda warnings, photographed him, and fingerprinted him. Although he had spoken fluent English in his conversation with the customs officials, he told the INS officers that he could not understand English and that he could not read or write. Refusing to sign a card acknowledging that he understood the Miranda warnings, he requested permission to return to Mexico immediately.

On September 5, 1980, Martinez was charged with the felony of making a false claim of United States citizenship, in violation of 18 U.S.C. Sec. 911 (1982), and with the misdemeanor of eluding inspection by INS officers, in violation of 8 U.S.C. Sec. 1325 (1982). Martinez is an American citizen but he did attempt to elude inspection. He was fingerprinted for a second time. On September 12, he appeared in Magistrate's Court in Tucson, Arizona, where he reiterated his pseudonym and his false claim of Mexican citizenship and, in accordance with a plea agreement, pleaded guilty to the The first Colorado trial resulted in a mistrial, when the judge and the prosecution engaged in conduct designed to provoke the defense into moving for mistrial. See United States v. Martinez, 667 F.2d 886, 890 (10th Cir.1981), cert. denied, 456 U.S. 1008, 102 S.Ct. 2301, 73 L.Ed.2d 1304 (1982). At the second trial, the government called witnesses to testify as to Martinez's apprehension in Arizona, arguing that his actions upon reentering the country in 1980 indicated his intent and his consciousness of guilt in the letter-bombing charges. He was acquitted, and on November 30, 1984, after an unrelated appeal, all remaining Colorado charges against him were dismissed on the government's motion.

count of eluding INS inspection. In return, the government dropped the factually incorrect count of claiming false United States citizenship, and the magistrate sentenced Martinez to ten days' imprisonment. Martinez was moved to a camp to await either voluntary departure or deportation. Soon after this move, the INS learned that Martinez had been operating under the "Jose Reynoso-Diaz" pseudonym. The prosecution in Arizona allowed Martinez to be removed to Colorado to face trial on outstanding charges instead of pressing additional charges against him in Arizona.

During the second trial, the Arizona authorities, assisted by some conversations with the Colorado prosecution, began an investigation into the initial Arizona incidents. This investigation, which lasted two years, resulted in the present indictment. The reasons for the duration of the investigation are disputed. Martinez claims that the government was merely awaiting the outcome of the Colorado prosecution. The government contends that it was verifying fingerprints and seeking financial information, and that the outcome of the prosecutorial efforts in Colorado did not influence the decision to prosecute in Arizona. On January 15, 1985, Martinez was reindicted in Arizona and, four days thereafter, a superseding indictment was returned, charging Martinez with two counts of making false statements to federal officers concerning his identification and citizenship, 18 U.S.C. Sec. 1001 (1982), and one count of making a false declaration before a court, 18 U.S.C. Sec. 1623 (1982). After a full hearing at which the parties presented evidence and argument, the district judge ordered the indictment dismissed on the ground of vindictive prosecution. He found that no actual vindictive prosecution occurred but held that dismissal was required because the appearance of vindictiveness had not been rebutted. See 3 Reporter's Transcript (R.T.) at 336-38. This appeal ensued.

II. STANDARD OF REVIEW

Martinez argues that this appeal should be dismissed for want of jurisdiction, pursuant to 18 U.S.C. Sec. 3731 (1982), which prevents the United States from appealing "where the double jeopardy clause of the United States Constitution prohibits further prosecution." This claim is reviewed de novo. See United States v. Hill, 719 F.2d 1402, 1404 (9th Cir.1983).

The standard of review of a district court's finding of vindictive prosecution is a little less obvious. We recently examined the question in United States v. Gann, 732 F.2d 714 (9th Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 505, 83 L.Ed.2d 397 (1984), noting that "[s]ome cases have suggested an abuse of discretion standard, while others deem the issue to be one of mixed law and fact, calling for the application of the clearly erroneous standard." Id. at 724 (citations omitted); see United States v. North, 746 F.2d 627, 632 (9th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 1773, 84 L.Ed.2d 832 (1985). In United States v. McConney, 728 F.2d 1195 (9th Cir.) (en banc), cert. denied, --- U.S. ----, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984), we reexamined the standard of review for mixed questions of law and fact.

If the concerns of judicial administration--efficiency, accuracy, and precedential weight--make it more appropriate for a district judge to determine whether the established facts fall within the relevant ... If ... the question requires us to consider legal concepts in the mix of fact and law and to exercise judgment about the values that animate legal principles, then the concerns of judicial administration will favor the appellate court, and the question should be classified as one of law and reviewed de novo.

legal definition, we should subject his determination to deferential, clearly erroneous review. If, on the other hand, the concerns of judicial administration favor the appellate court, we should subject the district court's finding to de novo review....

Id. at 1202. While this guidance generally suggests de novo review, and thus substantially restricts choice, we readily accept that guidance here and review the district court's decision regarding vindictive prosecution de novo.

III. THE DOUBLE JEOPARDY CLAIMS

Martinez makes two double jeopardy arguments. First, he asserts that his 1980 guilty plea to the charge of eluding inspection has conclusively established that he is "Jose Reynoso-Diaz," a Mexican citizen. He makes this claim despite the fact that the source of his "Jose Reynoso-Diaz" identity is his own false representations. Nonetheless, relying on the collateral estoppel doctrine recognized as a component of the double jeopardy clause in Ashe v. Swenson, 397 U.S. 436, 443-44, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970), he claims that the United States may not now establish his true identity and citizenship in the present prosecution. Second, he argues that, because evidence of his flight and later apprehension in Arizona was held to be admissible in the Colorado trial, see United States v. Martinez, 681 F.2d 1248, 1254-59 (10th Cir.1982), his acquittal in the Colorado trial similarly prevents the government from bringing the instant charges to trial. We shall address each of these arguments in turn.

A. Double Jeopardy

The Supreme Court has held that the double jeopardy clause bars not only the retrying of identical claims but also bars further prosecution "when an issue of ultimate fact has once been determined by a valid and final judgment." Ashe v. Swenson, 397 U.S. at 443, 90 S.Ct. at 1194. Martinez argues that his 1980 guilty plea, involving as it did forgoing the prosecution on the count charging the claiming of false United States citizenship, conclusively established his "Reynoso-Diaz" identity. He cites United States v. Bejar-Matrecios, 618 F.2d 81, 83-84 (9th Cir.1980), in support of this contention. The case does not have the reach ascribed to it by Martinez. It is true that the court in dictum recognized that "evidence of a prior conviction, even though founded on a plea of guilty, may be relevant in a subsequent criminal proceeding to establish material facts necessary to sustain the prior judgment." Id. at 84. This dictum does not, however, accord a similar effect to the dropping of a count pursuant to a plea bargain. Whatever collateral estoppel effect a guilty plea might have must arise from the plea. It does not reach to factual assumptions on which certain counts dropped pursuant to a plea bargain might have rested.

This position is consistent with Ohio v. Johnson, 467 U.S. 493, 104 S.Ct....