U.S. v. Martinez

• Decision Date: 18 February 1998
• Docket Number: 95-5332,No. 95-5331,95-5331
• Citation: 136 F.3d 972
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mario MARTINEZ, Defendant-Appellant, UNITED STATES of America, Plaintiff-Appellee, v. Steven COX, a/k/a Bobby, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 972

136 F.3d 972

UNITED STATES of America, Plaintiff-Appellee, v. Mario MARTINEZ, Defendant-Appellant, UNITED STATES of America, Plaintiff-Appellee, v. Steven COX, a/k/a Bobby, Defendant-Appellant.

No. 95-5331, 95-5332.

United States Court of Appeals Fourth Circuit.

Argued Dec. 6, 1996.

Decided Feb. 18, 1998.

ARGUED: Margaret Brooke Murdock, Thieblot, Ryan, Martin & Ferguson, Baltimore, MD, for Appellant Cox. Gary Allen Ticknor, Baltimore, MD, for Appellant Martinez. Thomas M. DiBiagio, Asst. U.S. Atty., Baltimore, MD, for Appellee. ON BRIEF: Lynne A. Battaglia, U.S. Atty., Baltimore, MD, for Appellee.

Before WIDENER, MURNAGHAN, and NIEMEYER, Circuit Judges.

Affirmed by published opinion. Judge WIDENER wrote the opinion, in which Judge MURNAGHAN joined. Judge NIEMEYER wrote a separate opinion, concurring in all of the opinion except for Part II, and as to Part II, concurring only in the judgment.

OPINION

WIDENER, Circuit Judge:

On June 24, 1993, defendants Mario Martinez and Steven Cox, among others, were charged by indictment in the U.S. District Court for the District of Maryland with conspiracy to travel in interstate commerce with the intent to commit a murder for hire in violation of 18 U.S.C. § 371 (Count III); travel in interstate commerce to commit a murder for hire in violation of 18 U.S.C. § 1958 (Count IV); use of a firearm in connection with a crime of violence in violation of 18 U.S.C. § 924(c) (Count V); conspiracy to commit a crime of violence in aid of racketeering activity in violation of 18 U.S.C. § 1959 (Count VI); commission of a crime of violence in aid of racketeering activity in violation of 18 U.S.C. § 1959 (Count VII); and use of a firearm in connection with a crime of violence in aid of racketeering activity in violation of 18 U.S.C. § 924(c) (Count VIII). The district court dismissed Count VII prior to submission of the case to the jury. On November 8, 1993, the jury found Martinez guilty of Counts VI and VIII and found Cox guilty of Counts III, IV, V, VI, and VIII. The defendants now appeal their § 924(c) convictions under Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). They also challenge a supplemental jury instruction given by the court and raise various sentencing issues. We affirm the judgment of the district court.

I.

By late summer of 1992, members of Emmanuel Umegbolu's Baltimore drug organization were refusing to pay him for heroin he had supplied on a contingent basis. More specifically, one member of the drug organization by the name of Prince Ankrah had refused to pay Umegbolu for 200 grams of heroin and owed Umegbolu $36,000. In addition, Darrell Bond (a/k/a Pluck) had robbed Umegbolu of 100 grams of heroin during this same period of time. In September 1992, Umegbolu ordered Ankrah and Pluck robbed and killed to send a message to other members of his drug organization.

On September 7, 1992, Umegbolu called Thomas Faulkner, a local Baltimorean and dealer for Umegbolu. Umegbolu told Faulkner to come to the Econolodge on Security Boulevard in Baltimore. At the motel, Faulkner met the enforcers Steven Cox and individuals identified only as Terrence and Rob in addition to Umegbolu. Umegbolu told Faulkner that he wanted him to help Cox find Pluck and Pluck's accomplice, one Basil, to get Umegbolu's money back. Cox and Faulkner unsuccessfully attempted to locate Pluck and Basil.

On September 8, 1992, the next day, Cox, Terrence, and Rob went to Pluck's mother's house to find Pluck. They located the house but did not go inside. The next day, Cox and Umegbolu visited Ankrah and demanded payment. Ankrah refused to pay and called security; Cox and Umegbolu were forced to leave. Later, Cox, Terrence, and Rob visited Pluck's mother's house again, confronted Pluck's mother, and threatened to kill her and everyone in the house if Pluck did not return the heroin or money.

After an attempted robbery of a drug dealer on September 9, 1993, Umegbolu and his enforcers left Baltimore and went to New York.

On September 14, 1992, Cox held a meeting at his record store in the Bronx with Calvin Deair and Floyd Sinclair to plan another trip to Baltimore. At the meeting Cox stated that an African, (obviously Umegbolu), wanted individuals named Pluck and Prince killed in exchange for a portion of any drugs or money recovered from the intended victims. Cox decided to have the guns to be used for the killings transported separately. The next day, Deair and Sinclair gave Bernard Christian two 9-mm. semiautomatic pistols to take to Baltimore.

Christian arrived in Baltimore by train on September 16, 1992. Detective Gary Cover of the Baltimore City Police Department stopped him. Christian consented to a search of the bag he was carrying, and Cover found the two pistols Christian was transporting. Christian then agreed to cooperate.

Later that evening, Christian was placed in Room 825 of the Days Inn in downtown Baltimore under DEA supervision. The room was wired with video and audio equipment. The two guns found in Christian's bag were rendered inoperable and also placed in the room. Once in the room, Christian called Faulkner. They discussed killing Pluck. Christian also requested that they bring Martinez.

Cox, Martinez, Deair, and Sinclair arrived in Baltimore during the early morning hours of September 17, 1992. The four first went to BWI Airport and changed to a white rental van. They then went to the Days Inn. Cox and Martinez went up to Room 825 to meet with Christian, and Deair later followed. Videotape from the room showed Martinez looking at the two guns. Cox apparently had no physical contact with the guns in Room 825.

Later in the morning, Cox, Martinez, Deair, and Sinclair left the motel to meet Thomas Faulkner, who was supposed to point out Ankrah and Pluck. Christian remained in the motel room with the guns. According to Faulkner, the five of them drove by Pluck's mother's house (Pluck was not there) and then drove by Ankrah's apartment (Ankrah was not there either). The five next went to the Welcome Inn on Security Boulevard where Faulkner registered a room in his name.

Martinez and Faulkner then returned to the Days Inn to pick up Christian. Christian, Martinez, and Faulkner were arrested as they attempted to leave the motel with Faulkner carrying the guns. Cox, Sinclair, and Deair were later arrested at the Welcome Inn.

The defendants' trial began on September 13, 1993 and concluded on November 8, 1993. The jury found Cox guilty of Counts III, IV, V, VI, and VIII and found Martinez guilty of Counts VI and VIII. The district court sentenced Cox to 60 months under Counts V and VIII, which sentence was merged and made to run consecutively with 210 months under Counts III, IV, and VI, for a total sentence of 270 months. Martinez was sentenced to 60 months under Count VIII to run consecutively with 120 months under Count VI, for a total sentence of 180 months.

The defendants now appeal. Martinez and Cox both challenge the sufficiency of the evidence to support their convictions for a violation of 18 U.S.C. § 924(c) as charged, respectively, in Count VIII and Counts V and VIII of the indictment. In addition, Martinez contends that a supplemental instruction given by the district court in response to a question from the jury violated the due process clause. Both defendants also argue that the district court erred in sentencing them under 18 U.S.C. § 1959(a)(5), for attempting or conspiring to commit murder, when the indictment generically charged them with conspiracy to commit a crime of violence. Martinez further objects to the district court's use of U.S.S.G. § 2A1.5(a) in determining his base offense level for sentencing. Finally, Cox asserts that the district court erred in deferring to post-conviction collateral review the issue of whether he was entitled to a downward departure on the basis of incompetency of trial counsel.

II.

The defendants challenge their § 924(c) convictions in view of Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501 133 L.Ed.2d 472 (1995). The jury instructions in this case failed to charge the Bailey standard of active employment required to convict a defendant of using a firearm. ¹ 516 U.S. at 142-46, 116 S.Ct. at 505-07. Under Johnson v. United States, 520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997), the district court's erroneous instruction on an element of the offense is subject to harmless error analysis. Johnson, 520 U.S. at ---- - ----, 117 S.Ct. at 1548-50. Johnson permits application of the plain error standard set forth in United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). ²

Applying the Olano test to this case, it is clear that: (1) there is error; (2) the error is plain; and (3) the error "affect[s] substantial rights." Olano, 507 U.S. at 732-35, 113 S.Ct. at 1776-78. It is thus within our discretion to notice and correct the error, if it "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." Olano, 507 U.S. at 732, 113 S.Ct. at 1776 (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936)). In applying the fourth prong of Olano's harmless error test, we follow the Court in Johnson which considered whether the evidence on the element was "overwhelming" and "essentially uncontroverted at trial." Johnson, 520 U.S. at ----, 117 S.Ct. at 1550.

The record evidence regarding the defendants' using and carrying of the firearms shows that Martinez examined the guns in Room 825 of the Days Inn and that Cox was present when Deair and Sinclair gave the guns to Christian for transportation to Baltimore. It is not clear whether Cox ever had physical contact with the guns. In a question to the court, the jury indicated its belief at that time that Martinez was the only defendant who ever "physically handled a weapon." Because any of the defendants' personal physical contact with the guns was...