U.S. v. Martinez, s. 83-2571

• Citation: 749 F.2d 601
• Decision Date: 27 November 1984
• Docket Number: Nos. 83-2571,83-2582 and 83-2583,s. 83-2571
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Annie MARTINEZ, a/k/a Annie Griego, and Gloria Dominguez-Williams, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 601

749 F.2d 601

UNITED STATES of America, Plaintiff-Appellee, v. Annie MARTINEZ, a/k/a Annie Griego, and Gloria

Dominguez-Williams, Defendants-Appellants.

Nos. 83-2571, 83-2582 and 83-2583.

United States Court of Appeals,

Tenth Circuit.

Nov. 27, 1984.

Jason W. Kent of Poole, Tinnin & Martin, Albuquerque, N.M., for Annie Martinez, a/k/a Annie Griego, defendant-appellant.

Edwin Macy, Federal Public Defender, Albuquerque, N.M., for Gloria Williams, defendant-appellant.

Richard J. Smith, Asst. U.S. Atty., Albuquerque, N.M. (William L. Lutz, U.S. Atty., and Stanley K. Kotovsky, Jr., Asst. U.S. Atty., Albuquerque, N.M., with him on the brief), for plaintiff-appellee.

Before SEYMOUR, BREITENSTEIN, and McWILLIAMS, Circuit Judges.

McWILLIAMS, Circuit Judge.

By indictment, Gloria Williams was charged with six separate violations of 7 U.S.C. Sec. 2024(b), namely the unauthorized acquisition of United States Department of Agriculture food coupons. She was also charged in two counts in the same indictment with possessing heroin with an intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1). Further, she was also charged in two additional counts with distributing heroin, also in violation of 21 U.S.C. Sec. 841(a)(1).

In that same indictment, Annie Martinez, also known as Annie Griego, was charged with three different violations of 7 U.S.C. Sec. 2024(b), the unlawful acquisition of food coupons, in two additional counts with the possession of heroin with an intent to distribute, and in two more counts with the distribution of heroin, in violation of 21 U.S.C. Sec. 841(a)(1).

In a second indictment, returned some eight weeks after the first indictment, Martinez was charged with the possession of heroin with an intent to distribute, and the distribution of heroin, in violation of 21 U.S.C. Sec. 841(a)(1). The separate counts were based on separate transactions.

The two indictments were consolidated for the purpose of trial, and a jury convicted both defendants on all counts. Each has appealed. Some background facts are essential to an understanding of the issues raised on appeal.

Gloria Williams and Annie Martinez, the latter testifying that Annie Griego was her correct name (she will hereinafter be referred to as Griego), were both employed as cocktail waitresses at the Casa Grande Lounge in Albuquerque, New Mexico. The Department of Agriculture determined to conduct an undercover investigation into the possible abuse of its food coupon program in the Albuquerque area. Food coupons, more commonly referred to as food stamps, are issued by the State Welfare Office to eligible applicants, and, once received, they may be only exchanged by the recipient for food items.

Russell Barrett, a special agent of the Department of Agriculture, was engaged in wide-ranging undercover investigation in and around Albuquerque and his modus operandi, at least in part, was to offer food stamps for sale at a sharply discounted price to persons who he thought might be inclined to purchase them. In pursuance of his investigation, Barrett went to the Waterbed Company in Albuquerque. Barrett had previously received information from the Albuquerque Police Department that certain employees at the Waterbed Company might be engaged in fencing or otherwise dealing in stolen property. Barrett spoke with Al Green, an employee at the Waterbed Company, about his possible purchase of a waterbed with food stamps, which Barrett said he had received from an unidentified employee in the local welfare office. Barrett was willing to exchange the coupons at a 60% discounted value, i.e., a book with a face value of $50 was offered for $20. Green declined Barrett's offer, but suggested that Barrett should contact Gloria Williams at the Casa Grande Lounge, Green opining that she might be interested in acquiring food stamps at a reduced price, and that Barrett could then acquire the waterbed and pay for it with the monies he received from Gloria Williams.

From the record it would appear that Agent Barrett had not really heard of Gloria Williams or the Casa Grande Lounge until his conversation with Al Green, the Waterbed Company employee, although there is some minor suggestion that Barrett had received information from the local Albuquerque police that unnamed employees at the lounge had dealt in stolen property. In any event, Barrett proceeded at once to the Casa Grande Lounge. In the meantime, Al Green apparently had a telephone conversation with Williams to the end that Williams was expecting Barrett.

Without going into unnecessary detail, Barrett had numerous meetings with Gloria Williams and Annie Griego, waitresses at the Casa Grande Lounge, extending from January 24, 1983, to April 25, 1983. Both Williams and Griego on repeated occasions acquired food stamps at a price which was 60% lower than face value. On March 15, 1983, when Barrett approached Griego about buying more food stamps, the latter said she had no money, and it was on that occasion that Barrett indicated he would accept packets of heroin in exchange for food stamps. Subsequently, the defendants did give Barrett small quantities of heroin in exchange for the food stamps.

Speedy Trial

Both appellants argue that their trial did not comport with the 70-day requirement of the Speedy Trial Act. 18 U.S.C. Sec. 3161(c)(1). Trial of the charges contained in the second indictment, wherein Griego was the only defendant, was tried well within the 70-day requirement. Hence, this particular argument concerns the charges contained against both defendants in the first indictment. In this latter regard, it is agreed that the 70-day period began to run on July 6, 1983, as to both appellants. A jury was selected on September 26, 1983, although opening statements and the calling of witnesses was delayed until October 25, 1983. Part of this delay was caused by the fact that after the jury had been selected on September 26, 1983, several of the jurors thus selected had to be excused, for one reason or another, and replacement jurors had to be found.

The first question concerns the date when the defendants' trial "commenced" as that word is used in 18 U.S.C. Sec. 3161(c)(1). The government contends that the trial commenced on September 26, 1983, when the jury was selected. The defendants contend that the trial did not commence until October 25, 1983, when opening statements were made. Under the chronology set forth above, we hold that defendants' trial commenced on September 26, 1983. See United States v. Gonzalez, 671 F.2d 441 (11th Cir.1982), cert. denied sub nom., Gonzalez-Hernandez v. United States, 456 U.S. 994, 102 S.Ct. 2279, 73 L.Ed.2d 1291 (1982).

From July 6, 1983, to September 25, 1983, represents 82 days. However, 18 U.S.C. Sec. 3161(h)(1)(F) excludes from the time requirement delay caused by pre-trial motions, such delay to be computed from the date of filing of the motion or motions through the conclusion of the hearing on the motion of other prompt disposition of such. Williams filed several motions on July 19, 1983, and, even under her counsel's computation, these were not disposed of until August 2, 1983, which represents 14 excludable days, which would mean that her trial commenced 68 days after the Speedy Trial Act clock commenced to run.

Griego filed her pretrial motion on July 21, 1983, and again, under her own counsel's computation, such was not disposed of until August 2, 1983. Such constitutes 12 excludable days, which would bring her trial within the 70-day requirement.

There were other delays that arguably constituted excludable delays. For example, during the hearing held on defendants' pretrial motions on August 1 and 2, 1983, the defendants made an oral motion to produce documents then in possession of the prosecution. Briefs were thereafter submitted by the parties and the district court ruled on the motion to produce on August 11, 1983. Such would also appear to constitute excludable time. Be that as it may, in our view of the matter, there was no violation in the instant case of either the letter or the spirit of the Speedy Trial Act.

Outrageous Conduct

Both appellants argue that the conduct of Agent Barrett was so egregious and outrageous that the government should be barred from prosecuting them. Counsel suggests that the only reason Agent Barrett went to the Casa Grande Lounge to see, first, Gloria Williams, and then, as a result of this first contact, to see Annie Griego, was that they were at, or below, the poverty level and needed food stamps to help feed their families. Such is, possibly, one version of the evidence, but by no means the only one. The government's evidence indicates that the reason Agent Barrett went to the Casa Grande Lounge was the suggestion by Al Green, the employee at the Waterbed Company, that Gloria Williams might be interested in buying food stamps and that, with the proceeds of such a sale, Barrett could buy a waterbed from Al Green. In any event, Barrett did go to the Casa Grande Lounge and presented, first, Gloria Williams, and, later, Annie Griego with the opportunity to acquire food stamps at a substantial discount, and they both accepted. What prompted the defendants to thus acquire the food stamps is not really relevant.

What is virtually the self-same argument advanced here concerning outrageous conduct has been previously considered by us, and rejected, in a food stamp context. See United States v. Salazar, 720 F.2d 1482 (10th Cir.1983); United States v. Burrell, 720 F.2d 1488 (10th Cir.1983); and United States v. Biswell, 700 F.2d 1310 (10th Cir.1983). In Biswell, the key government witness was the same Agent Barrett whose investigatory techniques are challenged by counsel here. We similarly reject here the contention that Agent Barrett's conduct was so outrageous as to amount to a denial of defendant's due process.

Entrapment

Both Williams and Griego argue that there was entrapment as a matter of law. Griego...