U.S. v. Martin, 90-3293
| Citation | 964 F.2d 714 |
| Decision Date | 21 May 1992 |
| Docket Number | No. 90-3293,90-3293 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Humberto MARTIN, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Jeffrey E. Stone, Asst. U.S. Atty., Crim. Div., Barry R. Elden, Richard K. Kornfeld, argued, Asst. U.S. Attys., Criminal Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee.
Richard R. Mottweiler, argued, Chicago, Ill., for defendant-appellant.
Before COFFEY, RIPPLE and MANION, Circuit Judges.
The defendant-appellant, Humberto Martin, in his appeal of his conspiracy to distribute cocaine alleges that the district court improperly informed the jury of his co-defendants' entries of pleas of guilty and that the trial court improperly compelled him to attend trial in identifiable prison clothing. We affirm.
On June 11, 1990, a grand jury returned a two-count indictment charging the defendant (Humberto Martin) with conspiracy to distribute cocaine and with possession with intent to distribute cocaine in violation of Title 21 U.S.C. §§ 846 and 841(a)(1), and Title 18 U.S.C. § 2. Dionicio Lopez, Agerico Otero and Lillian Miranda also were charged in the indictment with conspiracy to distribute cocaine. Miranda pled guilty later that month to one count of conspiracy with intent to distribute cocaine and one count of possession with intent to distribute cocaine. Defendants Martin, Lopez and Otero were scheduled for trial on August 1, 1990.
On the morning of trial, Martin, Lopez and Otero were seated together at the table with defendant's counsel. After the prospective jurors had been brought into the courtroom and while the voir dire examination was being conducted, counsel for the defendant Martin approached the bench and had the following sidebar exchange with the court:
Following this conversation the court completed the voir dire, sent the jury out of the courtroom, and accepted Lopez and Otero's pleas of guilty in the absence of the jury. When the jury returned to the courtroom, the judge informed the jury only that the case against Lopez and Otero had been "resolved."
Evidence at trial revealed that the defendant Martin was involved in a conspiracy to distribute cocaine. Jeffrey Stickney, a special agent with the Drug Enforcement Administration, testified that agents of the DEA began an investigation in March of 1990 involving the sale of cocaine. During that month, undercover DEA Agent, Frank Guerra, purchased approximately two ounces of cocaine from Lopez and Otero on two separate occasions. Agent Guerra testified that on May 8, 1990, he met with Lopez and the defendant Martin at a liquor store at Peterson and Lincoln Avenues in Chicago, Illinois to arrange for the delivery of two kilos of cocaine, and during the meeting the government agent wore a hidden tape recorder. The tape recording of Agent Guerra's conversation with the defendant Martin and Lopez was admitted in evidence demonstrating the defendant Martin's involvement in the conspiracy:
The following day, May 9, 1990, DEA agents observed the defendant Martin and Lopez drive to Miranda's residence at 6049 North Albany in Chicago. A short time later the agents observed Martin leave the apartment, and enter a nearby Ford Probe, remove a white plastic bag and brief case and return to the apartment. Shortly thereafter, Lopez left the apartment and drove the vehicle back to the same liquor store where he previously had been observed in the company of Agent Guerra. Lopez met two DEA agents and accompanied them to join Otero in another car. At this time the agents arrested Lopez and Otero.
Following the arrest of Lopez and Otero, the DEA agents arrested Miranda and the defendant Martin in Miranda's apartment. After receiving consent from Miranda to search her apartment, the agents discovered the plastic bag and brief case that Martin had carried with him into the apartment from the car. 1 The bag contained approximately $87,000 in cash while the brief case held $86,935 in cash. The agents also recovered four ounces of cocaine in the bedroom.
The defendant Martin attended both days of his two-day jury trial in a blue jumpsuit given to nonbailed defendants awaiting trial and confined in the Chicago Metropolitan Correctional Center ("MCC"). After the first one-half day of trial and the voir dire examination and the jury selection had been completed, defense counsel objected to Martin's wearing his MCC-issued jumpsuit during trial, stating that he requested the marshal's office to give Martin civilian clothes to wear at trial, and that the marshals told him that they needed a minute order from the court to permit any defendant to change into civilian clothes. The court responded that according to a memorandum issued by the Chief Judge of the Northern District of Illinois, any request for different clothing should be made to the warden of the Metropolitan Correctional Center. According to the defendant, officials at the MCC subsequently refused a request to allow Martin to put on civilian clothes without an order from the trial judge. 2
Following the two-day trial, the jury found Martin guilty of both counts charged in the indictment, and he was sentenced to 137 months imprisonment followed by eight years of supervised release, together with a special assessment of $100.
The defendant Martin presents two issues for review: (1) whether the district court erred in refusing to grant his motion for mistrial after the court informed the jury that the case had been "resolved" with respect to the other defendants, and (2) whether the district judge committed reversible error when it refused to order the prison warden of the MCC to provide Martin with clothing other than the blue jumpsuit during the trial.
The defendant-appellant Martin contends that the trial court committed error when failing to grant his motion for mistrial after the court informed the jury that the case had been "resolved " with respect to the other defendants. "The district court's decision to deny ... [a] motion for mistrial is reviewed under the abuse of discretion standard." United States v. Perez, 870 F.2d 1222, 1227 (7th Cir.1989) (citing United States v. Fulk, 816 F.2d 1202, 1205 (7th Cir.1987)).
In his brief, the defendant Martin erroneously states that "the trial court improperly informed the jury that co-defendant's [sic] Otero and Lopez had pled guilty." However, the district court never stated that co-defendants Otero and Lopez had pled guilty but merely stated that the cases against Otero and Lopez had been "resolved ":
(Emphasis added). The word "resolve" is defined in Webster's College Dictionary (Random House, 1991) as "to come to a definite or earnest decision about...." The district court's use of "resolve" hardly implies that Otero and Lopez pled guilty, and for the defendant and/or his attorney to now claim that the district court informed the jury of the guilty pleas of Otero and Lopez is a blatant misrepresentation of the record. Furthermore, the record is most clear that the government never referred to the defendants, Lopez or Otero, as pleading guilty at any time during the trial. In fact, it was the defendant's trial counsel that made the guilty pleas of Lopez and Otero an issue when he told the jury during his closing argument in referencing to Lopez and Otero that "[t]he government got their drug dealers." By noting that the "government got their drug dealers," Martin's counsel attempted to convince the jury of Martin's relative innocence. Thus, for Martin to argue on appeal that he was prejudiced by the jurors' knowledge that Lopez and Otero pled guilty when it was Martin's own counsel who brought this information to the jury's attention in order to gain a tactical advantage is disingenuous at best.
Moreover, Martin's contention that the presence of Lopez and Otero during jury selection and their subsequent absence at trial was prejudicial to him because the jury inferred that Lopez and Otero had pled guilty is equally without merit. We have previously ruled that a co-defendant's entry of a guilty plea during trial is not in and of itself prejudicial to the remaining defendant(s). See United States v. McGrath, 811 F.2d 1022, 1024 (7th Cir.1987); United States v. Kahn, 381 F.2d 824 (7th Cir.), cert. denied, 389 U.S. 1015, 88 S.Ct. 591, 592, 19 L.Ed.2d 661 (1967). The fact that jurors may have known that Martin's "codefendan...
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