U.S. v. Banks, Docket No. 05-0653-CR.

• Citation: 464 F.3d 184
• Decision Date: 12 September 2006
• Docket Number: Docket No. 05-0653-CR.
• Parties: UNITED STATES of America, Appellee, v. Robert BANKS, Jaime Gomez, Thomas Marmolejas, Danny Mercedes, Andres Peralta, and Diego Mojica, Defendants, Johnny Martinez, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 184

464 F.3d 184

UNITED STATES of America, Appellee, v. Robert BANKS, Jaime Gomez, Thomas Marmolejas, Danny Mercedes, Andres Peralta, and Diego Mojica, Defendants, Johnny Martinez, Defendant-Appellant.

Docket No. 05-0653-CR.

United States Court of Appeals, Second Circuit.

Argued: May 19, 2006.

Decided: September 12, 2006.

B. Alan Seidler, New York, NY, for Defendant-Appellant.

Lisa R. Zornberg, Assistant United States Attorney (John M. Hillebrecht, on the brief), for Michael J. Garcia, United States Attorney for the Southern District of New York, New York, NY, for Appellee.

Before LEVAL, CALABRESI, and FRIEDMAN,^* Circuit Judges.

LEVAL, Circuit Judge.

Johnny Martinez appeals from a judgment of conviction and sentence entered February 3, 2005, in the United States District Court for the Southern District of New York (Chin, J.). Martinez argues that receipt in evidence of the guilty pleas and post-arrest statements of other defendants violated his right to confront witnesses pursuant to Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); that the district court did not take into account required sentencing factors; and that the sentence of over 30 years' imprisonment violated the extradition agreement between the Dominican Republic and the United States. We find that even if the admission of the statements of other defendants violated Crawford, the error did not affect Martinez's "substantial rights" and therefore did not amount to "plain error" requiring reversal; the district court did not fail to consider mandatory sentencing factors; and the district court did not abuse its discretion in finding no agreement between the Dominican Republic and the United States limiting Martinez's sentence. Accordingly, we affirm the judgment of conviction.

BACKGROUND

Martinez was tried before a jury on three counts: Count One charged conspiracy to commit murder for hire, in violation of 18 U.S.C. § 1958; Count Two, murder for hire, in violation of 18 U.S.C. §§ 2 and 1958; and Count Three, using and carrying firearms during and in relation to a crime of violence, in violation of 18 U.S.C. §§ 2 and 924(c). The jury found Martinez guilty of conspiracy to commit murder for hire (Count One) and the firearms violation (Count Three). It found him not guilty of the substantive offense of murder for hire (Count Two). The court sentenced Martinez, principally, to life imprisonment plus ten years.

A. The Conspiracy

The evidence at trial showed the following. In May 1998, Martinez, Jaime Gomez, and Thomas Marmolejas (collectively, "the gunmen") were recruited by Tony Matos, a member of a heroin-distribution organization ("the organization"), to kidnap two members of that organization ("the victims"). This was because the victims were suspected of stealing from the organization. The pay was to be $27,000. The organization, however, soon decided that the victims should be murdered rather than kidnapped. The gunmen accepted a new offer to murder the victims. The pay was to be $10,000 beyond the $27,000 previously offered.

On May 25, 1998, the three hired gunmen, heavily armed, embarked in a van to search for the victims. They were guided by two members of the organization, Robinson Reyes ("Robinson") and Andres Peralta. The gunmen were unable to find the victims that day.

The next day, in the same van, and again guided by Robinson, the gunmen located the victims' car and followed them. When the victims stopped at a traffic light, Martinez and Gomez, armed with a revolver and a machine gun with silencer, approached the car on both sides and shot over 20 bullets through the car's front windows. The victim in the driver's seat, Johan Pena-Perez, was shot dead with 13 gunshot wounds. The passenger, Nilton Duran, escaped and ran into a nearby building while Gomez pursued him on foot, continuing to shoot. He survived but was maimed by gunshot wounds. Police arrived at the scene and arrested Gomez. Robinson and Marmolejas escaped in the van. The organization later paid the gunmen the promised $37,000.

Marmolejas was arrested within a month. He and Gomez were tried and convicted of murder for hire and conspiracy to commit murder for hire. Peralta and Robert Banks, another co-conspirator and organization member, were arrested in October 1999. Peralta pled guilty to murder and conspiracy to murder, while Banks pled guilty to acting as an accessory after the fact to murder. Robinson and Juan Matos Reyes ("Junior"), one of the organization's leaders, pled guilty to murder and conspiracy to murder. Matos pled guilty to intentional killing in connection with a cocaine-distribution conspiracy. Matos and Robinson testified at Martinez's trial.

B. The Extradition Request

Four months after the attack, on September 25, 1998, Martinez was arrested and charged under the present indictment. He was released on bail and fled to the Dominican Republic. Approximately four years later, in August 2002, the United States made a request to the Dominican Republic for Martinez's extradition. He was arrested in the Dominican Republic and, on January 22, 2003, was returned to the United States. One of the disputed issues in this appeal is whether he returned voluntarily, as the Government contends, or pursuant to extradition, as Martinez contends.

C. The Crawford Evidence at Trial

In defending at trial against the charge of conspiracy to murder, Martinez's counsel argued that if any conspiracy was established, it was a conspiracy to kidnap, not to murder. In response, the Government supplemented its extensive evidence of the murder objective of the conspiracy with testimony from a case officer that (1) Banks had pled guilty to narcotics charges and to being an accessory to murder after the fact; (2) another organization member, Diego Mojica, had pled guilty to narcotics trafficking; (3) Junior had pled guilty to murder and narcotics charges; and (4) Peralta had told him during a proffer session that Peralta had falsely told Robinson that Martinez was shot during the incident. In addition, the Government introduced Banks's plea allocution, in which Banks admitted giving money to two people involved in a "payback" murder. Banks, Mojica, Junior, and Peralta did not testify at Martinez's trial. (The evidence did not include the fact that Robinson, Junior, and Peralta had pled guilty to conspiracy to murder.)

In connection with the evidence described above, the prosecutor argued in summation:

[A]sk yourselves if this was really a kidnapping, why on earth would Robinson Reyes, Tony Matos, Andres Peralta, [Junior] Reyes, Robert Banks, why would they all have pled guilty to murder, or in Banks' case accessory after the fact to murder, if this was supposed to be a kidnapping. . . . It simply doesn't make sense. Nobody would voluntarily subject themselves to a life sentence falsely.

The Government concedes that at least some of this evidence was impermissible under the Supreme Court's later decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

D. Martinez's Transfer to the United States

Martinez's counsel, in her opening, said to the jury that Martinez "surrender[ed] to the authorities in the Dominican Republic to return to the United States to face trial." To rebut this suggestion that Martinez had come voluntarily to face the charges, the Government called an agent of the Dominican Republic's National Antidrug Division, who testified that Martinez was "extradited to the United States." On cross-examination, defense counsel asked the agent if he was aware that Martinez had "voluntarily consented" to this extradition.

After the jury had rendered its verdicts, finding Martinez guilty of conspiracy to murder for hire and the firearms violation, the parties returned to the question whether Martinez's return had been compelled or voluntary. On June 8, 2004, a week before the date scheduled for sentence, Martinez submitted a letter, now asserting that he had been extradited from the Dominican Republic pursuant to an agreement limiting his sentence to 30 years. Attached to his letter were certified copies of (1) a statement by the Office of the Attorney General of the Dominican Republic, dated September 10, 2002 (i.e., a few weeks after the United States issued its extradition request), which seemed to suggest that, pursuant to Dominican law, Martinez's sentence could not exceed 30 years; and (2) a "decree" of the President of the Dominican Republic, dated January 14, 2003, also suggesting that Martinez's sentence must be so limited.

The Government responded, submitting three documents. The first was the extradition treaty generally applicable to individuals extradited by the Dominican Republic, which contains no 30-year limitation. The second was a sworn declaration of an official of the United States Department of State, explaining the procedures extraditing nations normally follow when they seek to impose conditions on extradition, noting that no such procedures had been followed in this case, and asserting that the State Department had received no communications from the Dominican Republic regarding limitations on Martinez's sentence. The writer concluded that there was no sentence-limiting agreement between the United States and the Dominican Republic regarding Martinez. The final document was the sworn declaration of the Director of the Office of International Affairs of the Criminal Division of the United States Department of Justice, in which she explained that, to her knowledge, no United States official had received, prior to Martinez's transfer to the United States, any documentation indicating either an extradition-based agreement with the United States on Martinez's sentence or that the Dominican Republic had in fact extradited Martinez. She also noted that such agreements are unusual and, when they occur, they generally follow a certain procedure—which was not followed in this case...