U.S. v. Martinez

• Citation: 962 F.2d 1161
• Decision Date: 03 June 1992
• Docket Number: No. 91-5585,91-5585
• Parties: 35 Fed. R. Evid. Serv. 813 UNITED STATES of America, Plaintiff-Appellee, v. Rodolfo MARTINEZ, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1161

962 F.2d 1161

35 Fed. R. Evid. Serv. 813

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

No. 91-5585.

United States Court of Appeals,

Fifth Circuit.

June 3, 1992.

Rehearing Denied July 8, 1992.

Philip J. Lynch, Alfredo R. Villarreal, Asst. Federal Public Defenders, Lucian B. Campbell, Federal Public Defender, San Antonio, Tex., for defendant-appellant.

Gregory D. Anderson, Asst. U.S. Atty., Richard L. Durbin, Jr., U.S. Atty., LeRoy M. Jahn, Asst. U.S. Atty., Ronald F. Ederer, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before DAVIS, JONES, and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge.

Rodolfo Martinez was convicted of possession of a firearm by a felon, a violation of 18 U.S.C. § 922(g)(1), and sentenced to fifteen years imprisonment. ¹ Martinez appeals, asserting that the district court erred in admitting extrinsic evidence regarding the alleged prison gang membership of Martinez's sole defense witness, and that there is insufficient evidence to support his enhanced sentence under 18 U.S.C. § 924(e)(1). Finding no error, we affirm Martinez's conviction and sentence.

I

On the evening of September 26, 1989, San Antonio police officer Daniel Robles was working street patrol duty in a marked police car. At approximately 10:30 p.m., Robles observed Martinez and Tony Rodriguez--a man Robles recognized from previous arrests and encounters--running across Guadalupe Street. His suspicions aroused, Robles decided to follow the two men to determine why they were running. Robles passed Martinez and Rodriguez and then positioned his police car so that it was facing them.

After seeing Robles, Rodriguez and Martinez both slowed to a fast walk--Martinez following approximately twelve feet behind Rodriguez. Using the side spotlights on his patrol car, Robles illuminated the two suspects. Robles, still in the police car, saw Rodriguez reach into his left pocket and drop a gun to the ground. Concerned for his safety, Robles called for backup. With his service revolver drawn, Robles got out of his police car and told Rodriguez and Martinez to put their hands up. Martinez stopped, turned away from Robles, and refused to raise his hands as instructed. At that time, Robles saw a gun fall to the sidewalk between Martinez's feet. Martinez then raised his hands and turned around to face Robles. Shortly thereafter, another police officer arrived at the scene and Martinez and Rodriguez were arrested.

Robles recovered both discarded guns and carved his initials on the weapon that he had seen fall between Martinez's feet. While transporting the men to the police station for processing, Rodriguez told Robles that both of the guns were his.

At trial, Rodriguez--Martinez's sole defense witness--testified that, on the night of the arrest, he had both guns in his possession, and that he dropped the first upon seeing Robles and the second when Robles approached them. Rodriguez testified that Robles did not see him drop the first gun, but did observe him throw the second gun to the ground. Rodriguez explained that he dropped both guns because he did not want Robles to find him in actual possession of the weapons.

During cross-examination and over Martinez's objection, the district court allowed the government to ask Rodriguez whether he was a member of a prison gang called the "Mexican Mafia." ² After Rodriguez denied any affiliation with the Mexican Mafia, the government, again over Martinez's objections, ³ elicited rebuttal testimony from Valentine Lopez--an intelligence officer with the San Antonio Police Department. Lopez testified that one of the tenets of the Mexican Mafia is that members look out for each other and would not hesitate to come to court to testify untruthfully. Additionally, Lopez testified that he knew Rodriguez was a member of the gang and he also believed Martinez was a member. Martinez, however, did not object that Lopez lacked personal knowledge to testify that Martinez was a member of this gang. See Fed.R.Evid. 602 ("a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.").

At the charge conference, after the parties rested, Martinez moved, for the first time, to strike the testimony of witnesses regarding gang membership. ⁴ The district court denied Martinez's motion but instructed the jury to consider evidence of gang membership only to decide whether Rodriguez was biased in favor of or against any party, and for no other purpose. ⁵ Martinez was convicted under 18 U.S.C. § 922(g)(1), and the district court sentenced him pursuant to the sentence enhancement provision of 18 U.S.C. § 924(e)(1).

II

A

Martinez contends the district court abused its discretion by allowing Lopez to testify that Rodriguez was a member of the Mexican Mafia prison gang to show bias on Rodriguez's part. According to Martinez, Lopez's testimony improperly attacked Rodriguez's credibility through evidence of specific instances of conduct, a violation of Rule 608(b) of the Federal Rules of Evidence. Specifically, Martinez reasons that, without evidence that Martinez was a Mexican Mafia member, Lopez's testimony about Rodriguez and the Mexican Mafia, even if true, is not probative of Rodriguez's bias.

In considering Martinez's challenge to the admission of Lopez's testimony, we employ a deferential abuse of discretion standard of review. See United States v. Duncan, 919 F.2d 981, 985 (5th Cir.1990) (citations omitted), cert. denied, --- U.S. ----, 111 S.Ct. 2036, 114 L.Ed.2d 121 (1991); United States v. Bratton, 875 F.2d 439, 443 (5th Cir.1989) (citation omitted). In most instances, Rule 608(b) of the Federal Rules of Evidence prohibits the admission of extrinsic evidence solely for the purpose of attacking the credibility of the witness. See Fed.R.Evid. 608(b); ⁶ see also United States v Farias-Farias, 925 F.2d 805, 809 (5th Cir.1991) (citation omitted); United States v. Diecidue, 603 F.2d 535, 550 (5th Cir.1979) (citations omitted), cert. denied sub nom., 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 781 (1980). Extrinsic evidence may, however, be admissible for another purpose--for example, if it tends to show bias in favor of or against a party. See United States v. Abel, 469 U.S. 45, 56, 105 S.Ct. 465, 471, 83 L.Ed.2d 450 (1984) (holding that impeachment evidence inadmissible under 608(b) may be admissible for another purpose, as "[i]t would be a strange rule of law which held that relevant, competent evidence which tended to show bias on the part of a witness was nonetheless inadmissible because it also tended to show that the witness is a liar"); see also United States v. Thorn, 917 F.2d 170, 176 (5th Cir.1990) ("An exception to the prohibition against the use of extrinsic evidence to attack the credibility of a witness exists in cases in which the evidence tends to show bias or motive for the witness to testify untruthfully."), citing Diecidue, 603 F.2d at 550. The probative value of admitting the extrinsic evidence must substantially outweigh any prejudicial effect under Rule 403 of the Federal Rules of Evidence. See Farias-Farias, 925 F.2d at 809; see also Thorn, 917 F.2d at 176 (under general mandate of Rule 403, "district judge should exclude evidence if its prejudicial effect outweighs its probative value").

In Abel, the Supreme Court found that a gang member's testimony that the defendant and a defense witness were members of the same gang and that it was characteristic of members of this gang to do anything to help each other--including steal, cheat, kill or lie--was permissible extrinsic evidence of bias. See Abel, 469 U.S. at 49, 105 S.Ct. at 467. The Court reasoned that evidence of the possible bias of a witness is relevant because "[a] successful showing of bias on the part of a witness would have a tendency to make the facts to which he testified less probable in the eyes of the jury than it would be without such testimony." Id. at 51, 105 S.Ct. at 468. The Court stated that "[a] witness' and a party's common membership in an organization, even without proof that the witness or party has personally adopted its tenets, is certainly probative of bias." Id. at 52, 105 S.Ct. at 469.

Martinez proffers many reasons why Abel does not control this case ⁷ and, therefore, why the district court abused its discretion in admitting Lopez's testimony. Martinez's reasons need not long detain us, however, because, without passing on the propriety of the admission of Lopez's testimony, we conclude that Martinez's failure to timely object is dispositive of Martinez's appellate challenge regarding the admission of the evidence.

In order to preserve a claim of error for appellate review, a party must timely object or move to strike the objectionable evidence, stating the specific ground of the objection. See Fed.R.Evid. 103(a)(1). ⁸ Martinez's motion to strike was not contemporaneous with the admission of Lopez's testimony. ⁹ Indeed, Martinez did not make a motion to strike until the charge conference--after both sides had rested. Had Martinez timely objected to Lopez's testimony, Martinez could then have shown that he was not a Mexican Mafia gang member, that Rodriguez was not a Mexican Mafia gang member, and why Abel does not apply. He did not. Moreover, even when he moved to strike, apart from contending that the evidence violates 608(b), Martinez did not expressly articulate the asserted grounds for inadmissibility under Abel, referring vaguely and generally to "any testimony relating to the gang membership." Moreover, he did not object on the grounds that Lopez lacked personal knowledge to testify about "La 'M' " or membership in "La 'M' "--specifically he failed to object that Lopez lacked personal knowledge to testify that Martinez was a member of "La 'M'." W...