U.S. v. Martinez

• Decision Date: 07 November 1989
• Docket Number: No. 88-1612,88-1612
• Citation: 890 F.2d 1088
• Parties: 29 Fed. R. Evid. Serv. 418 UNITED STATES of America, Plaintiff-Appellee, v. Lorenzo MARTINEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1088

890 F.2d 1088

29 Fed. R. Evid. Serv. 418

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

No. 88-1612.

United States Court of Appeals, Tenth Circuit.

Nov. 7, 1989.

Stephen C. Peters, Asst. U.S. Atty. (Michael J. Norton, Acting U.S. Atty., and Kathryn Meyer, Asst. U.S. Atty., with him on the brief), Denver, Colo., for plaintiff-appellee.

David A. Lane, Denver, Colo., for defendant-appellant.

Before SEYMOUR, HENLEY ^* and BALDOCK, Circuit Judges.

BALDOCK, Circuit Judge.

Defendant-appellant, Lorenzo Martinez, was charged in a one-count indictment with failure to appear in violation of 18 U.S.C. Sec. 3146(a)(2). That statute reads in relevant part: "Whoever, having been released ... [on bail] knowingly ... fails to surrender for service of sentence pursuant to a court order shall be punished...." At trial, the parties agreed that the sole issue for the jury's consideration was whether Martinez possessed the required mental state to commit the crime. The jury answered yes and returned a verdict of guilty. On appeal, Martinez challenges his judgment of conviction, asserting the district court improperly (1) charged the jury that the prosecution "need not establish with certainty the exact date of the alleged offense," (2) allowed into evidence proof of his prior conviction and subsequent indictment for cocaine trafficking, and (3) failed to grant a mistrial based upon prosecutorial comments concerning his failure to testify at trial. Our jurisdiction arises under 28 U.S.C. Sec. 1291. We affirm.

Facts

On December 5, 1985, Martinez was convicted of conspiring to possess and distribute cocaine in violation of 21 U.S.C. Secs. 841 & 846. Directly following the imposition of a four-year sentence on May 9, 1986, the district court granted Martinez an appeal bond on which his brother was the surety. At the bond hearing, the court required Martinez to read aloud that provision of his conditions of release which required him to keep the court and prosecution apprised of any address change: "The defendant shall advise the court and the U.S. attorney in writing prior to any change in address." Martinez agreed to obey all the conditions of his release, report to the probation office as directed, and surrender for service of sentence if his conviction was upheld. Martinez further acknowledged the possible penalties for his failure to comply. Next to his signature, Martinez identified his mailing address as that of his father--P.O. Box 301, San Luis, Colorado.

On August 6, 1987, this court affirmed Martinez' conspiracy conviction. United States v. Martinez, 825 F.2d 1451 (10th Cir.1987). The mandate issued on October 16, 1987. That same day, the clerk of the district court directed Martinez by separate letters addressed to him at P.O. Box 301, San Luis, Colorado, and to his attorney at 1343 Delaware, Denver, Colorado, to surrender to the marshal on or before November 16, 1987. When Martinez did not surrender, he was indicted for failure to appear under 18 U.S.C. Sec. 3146(a)(2). ¹ On December 17, 1987, authorities arrested Martinez at the Town and Country Motel in Denver where he had resided since November 23, in a room registered under the name of Steve Medina.

The circumstantial evidence at trial pertaining to Martinez' mental state was largely undisputed. On September 2, 1987, Martinez phoned his probation officer to check on the status of his appeal and a possible surrender date. The probation officer told Martinez to expect a surrender letter sometime in early October. After September 10, 1987, Martinez failed to report as required to his probation officer. On September 18, 1987, Martinez was indicted on new cocaine charges. Because of his earlier conviction, the new charges carried a potential sentence of between ten years and life imprisonment. 21 U.S.C. Sec. 841(b)(1)(B). At that point, Martinez could no longer be contacted at his listed mailing address. Although Martinez' probation officer testified that Martinez was continually told to provide the probation office with any change of address, Martinez did not do so.

The day following the new indictment, September 19, 1987, Martinez registered at the Holiday Inn in Alamosa, Colorado, just forty-five miles from San Luis. His registration card at the motel listed his address as P.O. Box 352, San Luis, as opposed to Box 301. Martinez told the lounge manager that he was from Denver and was in town to see his family. Martinez checked out of the motel on September 22. While the lounge manager recalled that Martinez was again a guest at the inn the next month, his sister testified that Martinez stayed at home with his father, where she also resided, for the better part of September and October.

Martinez' attorney during this time was Karl Geil. According to Geil, Martinez notified him prior to October of a change of address which Geil wrote on a notepad but subsequently lost. Geil informed Martinez of both the adverse appellate judgment and new drug charges by a letter dated October 7, 1987, addressed to P.O. Box 301, San Luis. The letter concluded: "[The U.S. attorney] suggests that you might wish to turn yourself in rather than having the federal government authorities searching the United States for you." Geil also sent to Martinez a copy of the October 16 letter from the district court clerk directing Martinez to surrender. Geil had no further contact with Martinez after this letter. Yet no correspondence addressed to Martinez at P.O. Box 301, San Luis, was ever returned undelivered.

About the time of his November 16 surrender date, Martinez arrived at the home of his cousin, Joe Manzanares, in Denver. Martinez told his cousin that he had to surrender and asked if he could stay with him at 4955 Lincoln for a couple of nights. Manzanares agreed. During his stay with Manzanares, Martinez received a phone call from his sister. She informed Martinez that if he did not surrender by December 18, his brother would forfeit the property posted as bond on Martinez' behalf. Martinez assured his sister he knew he had to surrender.

After leaving Manzanares' house, Martinez apparently checked into the Town and Country Motel. On December 1, 1987, Martinez phoned Manzanares and asked him to come to the motel. Manzanares picked up Martinez and the two men proceeded to have dinner with Martinez' daughter. Following dinner, the men returned Martinez' daughter to her mother's house. At Martinez' request, Manzanares then dropped Martinez off at the corner of Broadway and Colfax in Denver. Martinez did not tell Manzanares were he was going. Seventeen days later, Martinez was apprehended by federal authorities.

I.

Martinez argued at trial that he did not "knowingly" fail to surrender on November 16, 1987, as required by 18 U.S.C. Sec. 3146. According to Martinez, because the failure to appear as proscribed by Sec. 3146 was not a continuing offense, evidence suggesting that he subsequently received notice that he was to have surrendered on that date was irrelevant. Consequently, Martinez objected to the district court's jury charge regarding the timing of the offense:

You will note that the indictment charges that the alleged offenses were committed on or about a certain date. The proof need not establish with certainty the exact dates of the alleged offenses. It is sufficient if the evidence in the case establishes beyond a reasonable doubt that the offense was committed on a date reasonably near the date alleged.

Rec. vol. IV at 336.

A.

The question of whether a federal offense is "continuing" in that the crime is not exhausted so long as the prescribed conduct continues or "complete" in that the crime ends when every element of the crime occurs, is a matter of statutory interpretation reviewable de novo. Toussie v. United States, 397 U.S. 112, 124-25, 90 S.Ct. 858, 865-66, 25 L.Ed.2d 156 (1970) (White, J., dissenting), superseded by 50 U.S.C.App. Sec. 462(d). Despite Martinez' assertion that Toussie cautions against labeling an offense as continuing "unless the explicit language of the substantive criminal statute compels such a conclusion", id. at 115, 90 S.Ct. at 860, we have no doubt that the offense of failure to appear under 18 U.S.C. Sec. 3146 is a continuing one. Both the nature of the failure to appear offense and the legislative history of Sec. 3146 lead us to this conclusion.

Toussie's justification for its caution rested in the potential conflict between a continuing offense and the statute of limitations. That case involved a male citizen's failure to register for the draft in accordance with federal law. The applicable statute required males between the ages of eighteen and twenty-six to register as determined by presidential proclamation. That proclamation mandated registration within five days of a male's eighteenth birthday. Toussie therefore should have registered between June 23 and June 28, 1959. He failed to do so but was not indicted until 1967. The government argued that under the statute the offense continued until Toussie reached the age of twenty-six, and thus the five-year statute of limitations for the offense did not bar his prosecution. The Supreme Court rejected the government's argument and held that Toussie's prosecution was barred because the offense of failing to register was complete five days after Toussie's eighteenth birthday in accordance with the proclamation. Toussie, 397 U.S. at 112-24, 90 S.Ct. at 859-65. Notably, Congress promptly overruled Toussie by enacting 50 U.S.C.App. Sec. 462(d), which provides that an individual may be prosecuted for failure to register up to the age of thirty-one. See United States v. Kerley, 838 F.2d 932, 935 (7th Cir.1988) (Sec. 462(d) implies a continuing duty to register).

The conflict presented in Toussie simply is absent here for no statute of limitations extends to the offense of failure to appear. Under 18 U.S.C. Sec. 3290: "No statute of...