837 F.2d 861 (9th Cir. 1988), 85-6553, United States v. Martinez

Docket Nº:85-6553.
Citation:837 F.2d 861
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Frank MARTINEZ, Defendant-Appellant.
Case Date:January 21, 1988
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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837 F.2d 861 (9th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,


Frank MARTINEZ, Defendant-Appellant.

No. 85-6553.

United States Court of Appeals, Ninth Circuit

January 21, 1988

Argued and Submitted June 5, 1987.

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William J. Landers, U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Bryan Sheldon, Law Offices of Allan A. Sigel, Los Angeles, Cal., for defendant-appellant.

Appeal from the United States District Court for the Central District of California.

Before ALARCON and O'SCANNLAIN, Circuit Judges, and BROOMFIELD [*], District Judge.

O'SCANNLAIN, Circuit Judge:

In this proceeding under 28 U.S.C. Sec. 2255, we are asked to decide whether an individual sentenced to incarceration, but never ordered to report to prison because of a court clerical error, can be compelled to start serving his sentence seven and one-half years later when the government first discovers the mistake.


In 1972 Martinez was employed as a business agent for the Teamsters' Union, in connection with which he was indicted for obstruction of justice, 18 U.S.C. Sec. 1503, and for conspiring to violate the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. Sec. 1962. Although acquitted of the conspiracy charge, he was convicted of obstruction of justice, and on April 11, 1973 was sentenced to four years' imprisonment. We affirmed Martinez's conviction in United States v. Campanale, 518 F.2d 352 (9th Cir.1975), and the Supreme Court denied Martinez's petition for certiorari. Grancich v. United States, 423 U.S. 1050, 96 S.Ct. 777, 46 L.Ed.2d 638 (1976).

On March 8, 1976 the district court spread upon the record the mandate of the court of appeals affirming the convictions of Martinez and his codefendant. The court's minute order contains no indication that Martinez was ordered to report to the custody of the Attorney General to begin serving his sentence, and no commitment order was entered. While Martinez was not present at the proceeding, his counsel was. Martinez was not ordered to surrender, but his codefendant was; the codefendant's sentence was completed. The government does not controvert the fact that between the dates of the spread of

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mandate and discovery of the error seven and one-half years later, Martinez never received notice to surrender himself to prison authorities to begin serving his sentence.

Martinez had remained free on bond throughout the 1973-76 appeal process. Curiously, on January 11, 1978 the district court issued an order exonerating Martinez's appeal bond.

In 1982 the Federal Bureau of Investigation discovered that Martinez had never served his sentence. A year later the government filed a motion for an order requiring Martinez to begin service of his sentence. After a court conference, Martinez was ordered to report to the Bureau of Prisons to begin service of sentence on October 31, 1983, which he did. Throughout the seven and one-half years between conviction and the 1983 order to begin service of sentence, Martinez made no attempt to conceal his identity or to flee. He had lived at the same address for the twenty-one years prior to this proceeding. Until recently he continued to work at the same job.

After the commitment order, but before surrendering himself, Martinez filed a motion pursuant to 28 U.S.C. Sec. 2255 to vacate or to set aside his sentence and filed a motion for a stay of surrender. On November 7, 1983 the district court denied the motion for stay of surrender, and on January 25, 1984 it denied his section 2255 motion.

Martinez appealed the denial of his section 2255 motion to this court. Because he had been in custody since October 31, 1983, Martinez also moved for release pending appeal. On April 24, 1984 a motions panel ordered him released pending appeal on his own recognizance, subject to such reporting requirements and travel restrictions as the district court might impose. On August 6, 1985 this court issued a memorandum disposition on Martinez's appeal from the denial of his section 2255 motion reversing and remanding to the district court to determine whether Martinez was a worthy candidate for probation. United States v. Martinez, 770 F.2d 171 (9th Cir.1985).

On remand, the district court determined that Martinez was not a suitable candidate for probation, and on November 13, 1985 ordered Martinez to recommence service of sentence. In doing so, the district court judge found:

That the defendant's counsel Mr. Allan A. Sigel was advised by notice from the clerk of the court of the filing and spreading of the judgment of the Court of Appeals affirming the conviction of Mr. Martinez ... [T]hat the record shows that Mr. Sigel was present on March 8, 1976 at the filing and spreading of the mandate of the court of appeals. And that he presented to the clerk a business card.... That Mr. Martinez was personally aware, as was his counsel, that the conviction for which he'd been sentenced was affirmed by the Court of Appeals. That the petition for writ of certiorary [sic] had been denied and the petition for rehearing had been denied by the Supreme Court of the United States. That Mr. Martinez was under an obligation to surrender himself to begin the prison sentence which had been imposed upon him. That he with knowledge of the fact that a clerical error had been made by the court in the failure to issue a bench warrant for his arrest upon his failure to present himself for service of the sentence did willfully and with full knowledge of that error fail to advise the government or the court of the error and continued to absent himself from the service of the sentence until he was arrested in 1983.

Martinez then moved the district court for release pending appeal, which motion the district court denied without comment; however, a motions panel of this court granted Martinez's motion for release pending the outcome of this appeal. 1 In

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this second appeal, having previously ruled on procedural probation claims, we now turn to the merits of Martinez's substantive arguments.


On appeal, Martinez claims that the execution of sentence violates his rights guaranteed by the United States Constitution. He also raises various claims alleging that the district court committed reversible error.


Martinez contends that incarceration after a seven and one-half year delay violates the due process guarantees of the fifth amendment.

At common law, "where the court's judgment is that the defendant be imprisoned for a certain term and for any reason, other than death or remission of sentence, time elapses without the imprisonment being endured, the sentence remains valid and subsisting in its entirety." United States v. Vann, 207 F.Supp. 108, 113 (E.D.N.Y.1962). Thus, under common law a convicted person erroneously at liberty must, when the error is discovered, serve the full sentence imposed.

More recent cases, however, examine the totality of the circumstances surrounding the delay in execution of sentence. See Johnson v. Williford, 682 F.2d 868, 873 (9th Cir.1982) (citing United States v. Merritt, 478 F.Supp. 804, 807 (D.D.C.1979)). If from the totality of the circumstances due process is violated, a convicted person is not required to serve the entire sentence imposed. See id. Traditionally, in cases involving delay in execution of sentence, federal courts have examined an alleged due process violation under the theories of waiver or estoppel. Id.; Green v. Christiansen, 732 F.2d 1397, 1399 (9th Cir.1984).

Under the waiver theory, this court in Johnson, 682 F.2d at 873, adopted the totality of circumstances test espoused in Merritt :

A convicted person will not be excused from serving his sentence merely because someone in a ministerial capacity makes a mistake with respect to its execution. Several additional factors must be present before relief will be granted--the result must not be attributable to the defendant himself; the action of the authorities must amount to more than simple neglect; and the situation brought about by defendant's release and his incarceration must be "unequivocally inconsistent with 'fundamental principles of liberty and justice.' "

Merritt, 478 F.Supp. at 807.

The parties disagree as to whether the delay in execution of sentence is in part attributable to Martinez. While it may not be Martinez's fault, the record indicates that he made no effort to contact any authorities regarding the mistake.

Courts have looked with favor on a defendant's attempt to bring a mistake to the government's attention. See Shelton v. Ciccone, 578 F.2d...

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