U.S. v. Martinez

• Citation: 938 F.2d 1078
• Decision Date: 08 July 1991
• Docket Number: No. 90-1037,90-1037
• Parties: 33 Fed. R. Evid. Serv. 794 UNITED STATES of America, Plaintiff-Appellee, v. Jesus MARTINEZ, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1078

938 F.2d 1078

33 Fed. R. Evid. Serv. 794

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

No. 90-1037.

United States Court of Appeals Tenth Circuit.

July 8, 1991.

Robert Justin Driscoll, Denver, Colo., for defendant-appellant.

Robert D. Clark, Asst. U.S. Atty., Denver, Colo. (Michael J. Norton, U.S. Atty., with him on the brief), for plaintiff-appellee.

Before HOLLOWAY, Chief Judge, BARRETT and McKAY, Circuit Judges.

HOLLOWAY, Chief Judge.

Defendant-appellant Martinez was found guilty by a jury of distribution of cocaine and aiding and abetting in the distribution of cocaine (21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2), and conspiracy to distribute cocaine (21 U.S.C. Sec. 846). On appeal, Martinez challenges two evidentiary rulings of the district judge who admitted in evidence certain items seized at two homes in the Denver, Colorado area, including money found on the person of one individual. Martinez contends that the judge abused her discretion under Fed.R.Evid. 403 in concluding that the probative value of this evidence, which included one-half pound of cocaine, a semiautomatic MAC-11 submachine gun, and large amounts of cash, was not substantially outweighed by its prejudicial effect. We affirm.

I

Martinez' arrest and conviction stem from an undercover drug operation carried out in the summer of 1989 by the Drug Enforcement Administration (DEA). Posing as a drug dealer from Wyoming, DEA Special Agent Montoya made two separate purchases in July 1989 of one ounce of cocaine from Ruben Romero (a co-defendant) at Bubba's Restaurant in Commerce City, Colorado. Following these purchases, Agent Montoya commenced discussions with Romero regarding the purchase of larger quantities of cocaine. Romero indicated that he had a supplier of cocaine, and that he was able to obtain kilogram quantities of the drug. Agent Montoya arranged to purchase two kilograms from Romero. On August 15, 1989 at approximately 3:00 p.m., Montoya met Romero at Bubba's to discuss the two-kilogram purchase. At the meeting, Romero told Montoya that he did not have the cocaine with him and that he would have to go get it. Romero said that he would deliver the cocaine to Montoya at approximately 4:00 p.m. at a nearby motel.

Romero left the meeting at Bubba's and went to his home in Denver. Montoya contacted him there by telephone at approximately 3:30 p.m., and Romero indicated that he was on his way to get the cocaine. Romero then drove to the home of Martinez in Denver. Together, in Romero's 1965 Dodge Dart sedan, the two traveled to a spot near the suburb of Lakewood, Colorado. There Romero was let out of the car, and Martinez proceeded alone to a home at 1330 Chase Street in Lakewood.

Martinez entered the Chase Street home and remained inside for five to ten minutes, and then returned to Romero's car. A DEA Agent had him under surveillance at the time. From what the Agent could observe one-half a block away, Martinez did not exit the home carrying any items. However, the Agent's vision of the area below Martinez' waist was allegedly obstructed by Romero's car. Martinez drove the car back to the general area where he had dropped off Romero, who was then proceeding east on foot. Traveling east as well, Martinez apparently came within eyesight of Romero but did not stop to pick him up. Soon thereafter, a black Mustang, which had been parked on a side street, began to follow Martinez. Martinez made a U-turn and, without exiting the car, waved and spoke briefly with the driver of the Mustang. Then he proceeded west to a gas station where he met Romero. Romero had arrived at the station on foot.

Romero assumed operation of his car and, alone, drove to the motel to meet Montoya. He arrived at approximately 4:30 p.m. When he presented Montoya with the promised two kilograms of cocaine, Romero was arrested. Martinez was also arrested soon thereafter. He was some three miles away from the motel, riding in a black Mustang which had picked him up at the gas station. The driver of the Mustang was Nicholas Meza, the lessee of the home at 1330 Chase Street.

That night law enforcement officers obtained a warrant to search the Chase Street home. They found there $69,000 in cash, a semiautomatic MAC-11 submachine gun, one-half pound of cocaine, and a triple-beam scale. The officers also conducted a consent search that night of Martinez' home in Denver and found there $6,730 in cash. A visitor to Martinez' home at the time of the search, Oscar Mendoza, consented to a search of his person and the officers discovered $1,980 on him. ¹

II

Martinez was charged along with Romero with conspiring to distribute cocaine on or about August 15, 1989, and distributing and aiding and abetting in the distribution of cocaine on or about the same date. In addition, Romero was charged with two counts of distribution of cocaine relating to his two sales in July to Agent Montoya. Romero pleaded guilty to the three distribution counts, and the government dismissed the conspiracy count as to him. Accordingly, Martinez stood for trial alone.

At trial, Romero testified for the government. ² He said that Martinez supplied him with the two kilograms of cocaine that he distributed to Agent Montoya. More specifically, Romero testified that Martinez obtained the cocaine on August 15, after letting Romero out of his Dodge, and brought the cocaine back to him. He explained that Martinez traveled alone to get the cocaine because Martinez' associates, who were in possession of the cocaine, did not know Romero well and were wary of having contact with him.

Over Martinez' objection, the government also sought to introduce in evidence the various items seized from the Chase Street home and the $8,710 seized from Martinez' home and the person of Oscar Mendoza, the visitor. The government argued that the jury should be allowed to infer from the presence at the Chase Street home of the cocaine, machine gun, cash, and scales (what it called the "standard tools of drug trafficking") that the Chase Street home was a "stash house"--that is, "a house where drugs were stored and out of which drugs were delivered and money was taken." IV R. 106, 112-13.

In view of Martinez' stop at the Chase Street home, the government reasoned that this inference would support its theory that Martinez was the supplier of the two kilograms of cocaine at issue. The jury could find, said the government, that the Chase Street home was the source of the cocaine, as it was the only significant stop Romero's car made after he informed Agent Montoya at Bubba's that he was departing to get the drug. Also, apparently relying on the alleged drug-trafficking association of large sums of cash, the government argued that the $6,730 seized from Martinez' home and the $1,980 found on Oscar Mendoza were admissible, relevant evidence.

In oral rulings from the bench, the district judge generally accepted the government's arguments and admitted all the contested evidence. As to the Chase Street items, the judge specifically found that there was a sufficient connection between the Chase Street home and Martinez to admit these items in evidence based on Martinez' five to ten minute visit to the home. However, she ruled that the items were only admissible for the limited purpose of shedding light on "the nature of th[e] home." IV R. 115-16. And, when the items were initially admitted, the court gave the jury an express limiting instruction to this effect. ³ Id. at 148. As for the cash seized from Martinez' home and the person of Oscar Mendoza, the judge noted that in cases involving suspected drug activity such evidence is admissible, and she found that there had been a sufficient showing by means of circumstantial evidence that Martinez was involved in drug dealings. Further, she said that inferences could be drawn from the fact that a person carrying large sums of cash is visiting an alleged drug dealer, and that Martinez was free to call Mendoza to explain what he intended to do with the money. Martinez, however, did not call Mendoza to testify.

Martinez did testify on his own behalf. He denied selling illegal drugs, and specifically refuted Romero's account of the events of August 15. ⁴ Also, Martinez testified that, while they were both in jail pending trial, Romero told him that he would arrange for Martinez' release in exchange for money. Martinez allegedly explained to Romero that he did not have any money. Moreover, Martinez testified regarding the source of the money seized from his home. He noted that he was in the business of buying and selling cars, and said that the seized cash had been forwarded to him by an associate to buy two car engines.

The jury found Martinez guilty on the conspiracy and distribution charges. He was sentenced to concurrent prison terms of 78 months, a four-year term of supervised release, and special assessments amounting to $100. This appeal followed.

III

Under Fed.R.Evid. 403, a trial judge must determine whether the probative value of evidence is substantially outweighed by the danger of unfair prejudice. Evidence is not unfairly prejudicial simply because it is damaging to an opponent's case. See United States v. Chalan, 812 F.2d 1302, 1308 (10th Cir.1987); Fitzgerald v. United States, 719 F.2d 1069, 1071 (10th Cir.1983). Rather, the evidence must have "an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." Fed.R.Evid. 403 advisory committee's note. A trial judge's discretion under Rule 403 in balancing the probative value of evidence against its potential prejudicial effect is broad, and reversal is appropriate only on a showing of abuse. See United States v. Sullivan, 919 F.2d 1403, 1417 (10th Cir.1990); United States v. Cuch, 842 F.2d 1173, 1175 (10th Cir.1988).

A

Martinez first contends that the district judge abused her discretion under Rule 403 by admitting...