U.S. v. Martinez, 84-2587

• Decision Date: 18 November 1985
• Docket Number: No. 84-2587,84-2587
• Parties: 19 Fed. R. Evid. Serv. 1099 UNITED STATES of America, Plaintiff-Appellee, v. Marty MARTINEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1481

776 F.2d 1481

19 Fed. R. Evid. Serv. 1099

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

No. 84-2587.

United States Court of Appeals, Tenth Circuit.

Nov. 18, 1985.

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

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

Before LOGAN and MOORE, Circuit Judges, and WEST, District Judge. ^*

JOHN P. MOORE, Circuit Judge.

Marty Martinez was convicted of five counts of unauthorized acquisition of food coupons (food stamps) in violation of 7 U.S.C. Sec. 2024(b). On appeal, Martinez maintains that his pretrial motion to dismiss for prosecutorial delay should have been granted; that the court improperly instructed on the defense of entrapment; and that defense counsel was improperly restricted in the cross-examination of a government witness. Finding no error, we affirm.

I.

Defendant was not arrested until ten and one-half months after the return of the indictment; hence, he claims that his right to a speedy trial as guaranteed by the Sixth Amendment and his right to be free from unnecessary delay established in Fed.R.Crim.P. 48(b) have been violated. He raised this issue by a pretrial motion to dismiss the indictment.

An evidentiary hearing upon the motion was held at which the defendant and agents of the government testified concerning the delay. Following the court's initial determination that the delay was presumptively prejudicial, the judge considered all the evidence in light of the "four-point test" established in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Finding an absence of prejudice to the defendant arising from the delay (the fourth point), the judge denied the motion to dismiss.

Although Barker establishes four tests or considerations for determining whether prosecutorial delay results in a denial of a speedy trial, in this case there is no real conflict over the first three tests: length of the delay, reasons for the delay, ¹ or the defendant's assertion of his right. Therefore, we focus, as did the trial court, on the fourth test: prejudice to the defendant.

During the course of his testimony, Martinez did not articulate any specific harm suffered as a consequence of the delay in his arrest. Although he stated he had been treated for an emotional problem that had some past effect on his powers of recollection, he did not suggest that he was unable to recall the details of the offenses of which he stood charged. An implication that he lost the opportunity to call a particular witness is also questionable. Martinez stated at the hearing that he was then unaware of the whereabouts of a former associate, but he expressed no intention to call this person as a witness. Not only did Martinez admit that the associate was never present during any of the transactions set forth in the indictments, but also his counsel conceded it was "somewhat speculative" that the absence of this person was harmful to the defense. More importantly, there being no evidence when the associate departed, his availability for trial had Martinez been arrested immediately after the indictment is equally problematic. Consequently, the only prejudice shown to the trial court was the presumption arising out of the length of the delay itself.

The trial court correctly held that the evidence was insufficient to warrant a finding of either a Sixth Amendment or a Rule 48(b) delay. United States v. Jenkins, 701 F.2d 850 (10th Cir.1983); United States v. Brown, 600 F.2d 248 (10th Cir.), cert. denied, 444 U.S. 917, 100 S.Ct. 233, 62 L.Ed.2d 172 (1979); United States v. Latimer, 511 F.2d 498 (10th Cir.1975). On appeal, defendant argues no prejudice need be shown to warrant dismissal on speedy trial grounds. Yet, in the absence of prejudice, we have great reluctance to dismiss an indictment for prosecutorial delay. United States v. Jenkins, supra; United States v. Brown, supra. Because of the lack of any other factor amounting to prejudice, we hold the trial court properly denied Martinez' motion to dismiss upon the basis of the evidence presented on the motion. United States v. MacDonald, 456 U.S. 1, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982).

II.

At trial, defendant testified and admitted committing the acts of which he was accused; however, he attempted to negate the effect of these admissions with the defense of entrapment. The trial court determined an entrapment instruction was proper, but refused identical instructions tendered by the government and the defendant and gave his own instead. The court also refused to instruct the jury to consider each transaction entered into by the defendant as seriatim elements of one whole transaction for the purpose of the entrapment defense. Defendant now argues the entrapment instruction given the jury was misleading and improper, and the omission of the seriatim theory instruction was prejudicial. We disagree.

A.

The instruction on entrapment given by the trial court was basically the same instruction discussed in United States v. Smegal, 772 F.2d 659 (10th Cir.1985), and held not improper when coupled with the other instructions in the case. In Smegal, we indicated our preference for an instruction in the form tendered by the litigants here because of our belief in its greater inherent clarity, but we did not hold the preferred instruction was the only acceptable instruction. Yet, that begs the issue.

The question presented here is whether the instruction given mistakenly left the jury with the notion the defendant had some burden of proving he was entrapped by requiring him to establish his lack of predisposition. ² Defendant's argument is principally predicated upon the absence of a phrase in the instruction telling the jury the government had the burden of proving there was no entrapment.

We faced that precise issue in Smegal, supra, as well as in United States v. Martinez, 749 F.2d 601 (10th Cir.1984). In both cases, we held it was not reversible error to fail to state in the entrapment instruction itself that the burden of proving no entrapment is on the government, where the instructions, taken as a whole, made that burden clear. We can find no reason to depart here from that established rule.

Examination of all the instructions given makes clear the jury was instructed the burden of proof beyond a reasonable doubt is always on the government and never shifts to the defendant. Accordingly, we conclude that in taking the instruction on entrapment in the context of the remaining instructions, the jury was not misled on the question of the government's burden of proving defendant was not entrapped.

The defendant has raised additional arguments regarding the alleged inadequacies of the court's instruction on entrapment. None of those objections was raised in the trial court; therefore, they are not properly preserved for appeal. Fed.R.Crim.P. 30.

B.

Defendant tendered two instructions which were not given, and he cites this refusal as error. We note initially, in tendering these instructions and objecting to the court's refusal, defendant made only a wan attempt to satisfy Fed.R.Crim.P. 30. That rule states: "No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection." (Emphasis added.) Here the "objection" was: "both instructions fit this case and should be given." In our judgment, that nonchalant comment is a far cry from "stating distinctly" the grounds why the defendant was entitled to these instructions. The issue has not been preserved for appeal.

We note parenthetically, however, even if the issue had been preserved, the court's failure to give the instructions would not have been reversible error. First, we have previously held the giving of an instruction properly defining the defense of entrapment obviates the giving of an additional instruction stating each transaction in the course of events is subject to separate consideration on the issue of entrapment. United States v. Perez, 493 F.2d 1339 (10th Cir.1974). Additionally, the court's instruction here on entrapment stated in part: "Just as it is your responsibility to consider each offense and the evidence applicable thereto separately, it is likewise your responsibility to consider the evidence concerning entrapment as to each offense separately." We believe that instruction covered the subject of defendant's proposed instruction, albeit in different words.

Next, the tenor of defendant's second proposed instruction was likewise covered in the court's instruction on entrapment. The proposed instruction would have told the jury to "look to the totality of the circumstances shown by the evidence, including the nature and extent of the inducement offered," in determining defendant's predisposition. The court's instruction stated: "In evaluating this matter of predisposition, you should look to the totality of the circumstances involved in the alleged offense with which the defendant is charged." The instruction given simply did not emphasize one aspect of the total circumstances as defendant wished. Such emphasis is not appropriate, and the issue was adequately covered. Joyce v. Atlantic Richfield...