U.S. v. Martinez-Mercado

• Decision Date: 15 November 1989
• Docket Number: No. 89-1343,D,MARTINEZ-MERCAD,89-1343
• Citation: 888 F.2d 1484
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Javierefendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1484

888 F.2d 1484

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

No. 89-1343

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Nov. 15, 1989.

Eduardo N. Lerma, El Paso, Tex., for defendant-appellant.

LeRoy Morgan Jahn, Philip Police, Asst. U.S. Attys., Helen M. Eversberg, San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before POLITZ, GARWOOD, and JOLLY, Circuit Judges.

GARWOOD, Circuit Judge.

A jury found Appellant Javier Martinez-Mercado (Martinez) guilty of importing marihuana into the United States, in violation of 21 U.S.C. Sec. 952(a), and of possessing marihuana with intent to distribute it, in violation of 21 U.S.C. Sec. 841(a)(1). Martinez appeals on several grounds, maintaining that the prosecution improperly failed to disclose certain evidence to him before trial; that the trial judge incorrectly denied his motion for acquittal; that the prosecutor violated his due process rights by eliciting from witnesses information that was probably false and by commenting on his silence during interrogation; and that the prosecution violated the Speedy Trial Act, 18 U.S.C. Sec. 3161, et. seq. We affirm.

Facts and Proceedings Below

At 4:45 a.m. on October 31, 1988, Martinez drove a Dina truck tractor across the bridge from Juarez, Mexico to El Paso, Texas. United States Customs Service Inspector Jose Trejo (Trejo) testified that agents ordered Martinez to drive into the secondary inspection area because the Dina, which had exceptionally long fuel tanks supported by three straps rather than the usual two, resembled a truck that had passed their outpost two days earlier, but which they had failed to inspect. At the secondary inspection area, Trejo asked Martinez for a declaration of what he was bringing from Mexico, to which Martinez replied "nothing." He also requested identification from Martinez, who presented Trejo with a United States border crossing card that allowed him to enter the country and travel up to twenty-five miles from the border.

Trejo testified that he then examined the truck's tanks to determine if they actually contained fuel. By tapping both with a brass hammer, he sensed that a portion of each tank held something solid. Trejo also noticed that the original fuel outlets had apparently been welded closed and the nozzles had been moved to the very end of the tanks.

At that time, agents decided to escort Martinez to their office at the bridge. Trejo testified that when they approached him, Martinez asked what was happening and volunteered that he was unemployed and seeking a job, even though his border entry card prohibited him from seeking employment in this country. Martinez also asserted that "they" had loaned him the truck, but was unable to identify who "they" were.

While agents detained Martinez, Trejo searched the interior of the truck. He noticed that the cab was very clean, which seemed unusual to him because such trucks frequently gathered dust on the Mexican roads. Trejo also observed that the cab did not contain personal effects, such as a toiletry kit, food, or a change of clothing, items truck drivers ordinarily carried when crossing the border because of the usual delays in clearing customs.

As a result of their suspicions, the agents called for the Customs Service canine unit to inspect the truck. The dog alerted to the gas tanks, which were then removed and found to be tightly packed at one end with bales of marihuana. The Drug Enforcement Agency (DEA) later determined that the total weight of marihuana was 306 pounds with a street value in El Paso of $240,000.

At this point, Trejo and fellow United States Customs Service Inspector Rodolfo Reyna (Reyna) arrested Martinez, advised him of his Miranda rights, and searched him, finding $132. Reyna asked Martinez whether he owned the truck and Martinez responded negatively. He further denied knowing the identity of the owner and maintained that he did not recognize the names on various United States and Mexican vehicle registration and taxation forms found in the cab, all of which contained some variation of the name "Martinez." ¹

DEA Special Agent Felipe Garcia (Garcia) testified that he was called to the scene at 9:30 that morning to inspect the contraband and interrogate the suspect. After advising Martinez of his Miranda rights in Spanish, Garcia asked him to explain his situation. Martinez asserted that earlier that morning, a man had approached him in a Juarez motel and offered him $300 to drive the truck to El Paso to pick up a semitrailer. However, Martinez was unable to tell Garcia where he was to obtain the semitrailer or how long his journey was to last. When Garcia inquired about the identity of his employer, Martinez then terminated the questioning. Both Trejo and Reyna testified that in their experience drivers working along the border typically earned only between $400 to $600 per month.

Following the conviction of Martinez on both counts, the district court sentenced him to sixty-three months in prison on each count to be served concurrently and four years of supervisory release on each count to be served concurrently as well. This appeal followed.

Discussion

Martinez raises several points on appeal, which we discuss in turn. First he contends that the prosecution deprived him of a fundamentally fair trial by failing to disclose prior to trial several matters about which Trejo and Reyna would eventually testify on the witness stand. ² During discovery the prosecution provided Martinez with copies of several government reports and agents' statements about the case. Martinez maintains that the agents' testimony "creat[ed] a totally different scenario" from that depicted by the documents provided to him by the prosecution. He appears to assert that the prosecution thereby misrepresented its case during the discovery process and thus violated the dictates of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and the district court's discovery order, which was modeled after Fed.R.Crim.P. 16.

The Supreme Court has declared that a "general constitutional right to discovery in a criminal case" does not exist. Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 1003, 94 L.Ed.2d 40 (1987) (quoting Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 846, 51 L.Ed.2d 30 (1977)); see also United States v. Fischel, 686 F.2d 1082, 1091 (5th Cir.1982). The Court, however, has recognized that a defendant's due process right to a fair trial prohibits the prosecution from suppressing evidence that is favorable to the accused and "material either to guilt or to punishment." Brady, 83 S.Ct. at 1196-97. Evidence that impeaches the credibility of a government witness whose testimony " 'may well be determinative of [the defendant's] guilt or innocence' " is Brady material that the prosecution may not suppress. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972) (quoting Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959)). Evidence that would exculpate the accused is such material as well. United States v. Johnson, 872 F.2d 612, 619 (5th Cir.1989). Nevertheless, because Brady and its progeny only serve to restrict the prosecution's ability to suppress evidence rather than to provide the accused a right to criminal discovery, the Supreme Court has asserted that the Brady rule was never intended "to displace the adversary system as the primary means by which truth is uncovered...." United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985). See also Weatherford, 97 S.Ct. at 846. As the evidence in question here was presented at trial, it was not suppressed, regardless of whether or not it had previously been disclosed during discovery. The substance of Martinez's complaint is not that evidence was suppressed, but rather that it should have been (but was not) suppressed because it was not disclosed in discovery prior to trial. This does not state a Brady violation claim.

Moreover, there was no Brady violation for the additional reason that the allegedly suppressed material was not exculpatory and could not have served to impeach the prosecution's witnesses. The information that Martinez contends is Brady material consisted of what Trejo and Reyna said in their testimony about their observations and impressions of their encounter with Martinez and the truck he was driving on October 31. This testimony in no way tended to exculpate Martinez. As Martinez asserted in his brief, "[h]ad it not been for those items the Government would not have had sufficient factual basis to support" the inferences of knowledge and intent necessary for a conviction. Additionally, this testimony itself did not help to impeach the credibility of the prosecution's witnesses; rather, the omission from the agents' investigative reports of these matters related in their testimony tended to serve the impeachment function by revealing the agents' inattention to detail, which is just the use that Martinez's attorney made of these omissions at trial. Because the information omitted from the reports was not favorable to Martinez, it could not have been Brady material. And, the fact that the reports did not contain the information testified to was not suppressed, but rather was entirely disclosed at trial and there fully exploited for all its possible impeachment value by Martinez.

As this Court has observed, Brady does not impose a duty on the prosecutor "to make a complete and detailed accounting of all police investigatory work on a case--to routinely deliver his entire file--to defense counsel." United States v. Brown, 628 F.2d 471, 473 (5th Cir.1980).

Martinez also maintains that the omission of the facts to which Trejo and Reyna would testify at trial from the investigative reports and statements provided to...