U.S. v. Martinez, 1342

• Decision Date: 03 October 1985
• Docket Number: D,No. 1342,1342
• Citation: 775 F.2d 31
• Parties: 19 Fed. R. Evid. Serv. 640 UNITED STATES of America, Appellee, v. Robert MARTINEZ, a/k/a "Robert Berk", Defendant-Appellant. ocket 85-1067.
• Court: U.S. Court of Appeals — Second Circuit

Page 31

775 F.2d 31

19 Fed. R. Evid. Serv. 640

UNITED STATES of America, Appellee, v. Robert MARTINEZ, a/k/a "Robert Berk", Defendant-Appellant.

No. 1342, Docket 85-1067.

United States Court of Appeals, Second Circuit.

Argued June 25, 1985.

Decided Oct. 3, 1985.

Stuart E. Abrams, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty. for Southern Dist. of New York, New York City, on brief), for appellee.

Lawrence Mark Stern, New York City (Martin L. Schmukler, New York City, on brief), for defendant-appellant.

Before KEARSE, CARDAMONE and FRIEDMAN, ^* Circuit Judges.

KEARSE, Circuit Judge:

Defendant Robert Martinez, a/k/a "Robert Berk," appeals from a judgment entered in the United States District Court for the Southern District of New York after a jury trial before Abraham D. Sofaer,

Judge, convicting him of attempting to commit a murder within the special maritime and territorial jurisdiction of the United States, in violation of 18 U.S.C. Sec. 1113 (1982). Martinez was fined $1,000 and sentenced to three years' imprisonment, to be served consecutively to a five-year term imposed on a prior conviction. On appeal, Martinez contends principally that the trial court should have entered a judgment of acquittal because the evidence was insufficient to establish an attempt to murder and because the jury's verdict of guilty on that count was inconsistent with the court's dismissal of another count against him and with the jury's verdict of not guilty on a third count; and he challenges the admission at trial of certain evidence against him. Finding no merit in Martinez's arguments, we affirm the judgment of conviction.

I. BACKGROUND

A. The Events

The government's evidence at trial consisted chiefly of the testimony of Herbert McNeil, a government informant who, in 1983, had been an inmate at the Metropolitan Correctional Center in New York City ("MCC"). Taking the evidence in the light most favorable to the government, the events were as follows.

In the spring of 1983, Martinez was incarcerated at MCC awaiting sentencing following his plea of guilty to a narcotics charge. Martinez planned, however, to hire a new lawyer and to withdraw his guilty plea. Terry Paul Jones, another inmate at MCC, had testified at a 1975 narcotics trial at which Martinez, then a fugitive, was a defendant but was not present. Jones was a potential witness against Martinez on a narcotics charge on which Martinez would be tried if he succeeded in withdrawing his plea. When Martinez learned that Jones was being transferred from MCC to the Federal Correctional Institution at Lompoc, California ("Lompoc"), he sought an introduction to McNeil, who had previously been in Lompoc, and asked if McNeil knew anyone who could arrange for Jones's murder. McNeil said he would get back to Martinez.

McNeil, unbeknownst to Martinez, was a government informant and reported Martinez's solicitation to the FBI. He subsequently told Martinez that "it could be done." In an ensuing conversation, Martinez told McNeil that if Jones could be killed and Martinez could retract his guilty plea, Martinez could "possibly beat the case" against him.

Martinez eventually agreed to pay McNeil approximately $10,000 for the murder--$3,000 in cash plus a few ounces of cocaine--and showed McNeil an MCC Transfer Notice that listed Jones's full name and prisoner identification number. Martinez told McNeil that payment could be made through other people after Jones was murdered. McNeil agreed to this arrangement but said he would need some money in advance; Martinez said he would get him some. On May 11, 1983, Martinez told McNeil he had something for him, went to McNeil's cell, and gave him $350 in cash. McNeil said he would forward the money to his contact in Lompoc; in fact he gave the money to FBI Special Agent Barbara Dennis, who visited McNeil posing as his girlfriend.

On May 12, 1983, the day after Martinez gave McNeil the $350, Martinez, represented by a new lawyer, appeared before Judge Edward Weinfeld in the narcotics case in which he was to be sentenced and indicated that he was considering moving to withdraw his guilty plea. On May 19, 1983, Judge Weinfeld denied Martinez's formal motion to withdraw his plea, and on the following day he sentenced Martinez to five years' imprisonment.

Shortly thereafter, Martinez told McNeil that he had not been able to withdraw his guilty plea but that it made no difference; he still wanted Jones killed. In a conversation on May 25, 1983, during which McNeil wore a concealed recording device, McNeil told Martinez that he had sent Martinez's $350 to the would-be killer in Lompoc, but had learned that the latter had been put On the basis of these events, Martinez was eventually indicted on three counts: (1) attempting to commit a murder within the special maritime and territorial jurisdiction of the United States, in violation of 18 U.S.C. Secs. 1113 and 2 (1982); (2) attempting to intimidate and threaten a witness, in violation of 18 U.S.C. Secs. 1512(a)(2) and 2 (1982); and (3) attempting to retaliate against a witness, in violation of 18 U.S.C. Secs. 1513 and 2 (1982).

into segregation and had been unable to kill Jones. Martinez said that since he had now been sentenced on his narcotics conviction, there was no point in going through with the murder if it would cause trouble for McNeil's contact, but that if there would be no problem, McNeil's contact should go ahead and kill Jones. Toward the end of the conversation, Martinez said, "[M]aybe it doesn't pay for me to do it, ya know what I mean? ... Wait a week ..., let's find out what's happening...." McNeil told Martinez that he would return the $350 if the murder did not go through; Martinez told McNeil not to worry about the money. The recording of this conversation was played for the jury. Later that day, Special Agent Dennis brought McNeil $350 in cash which McNeil gave to Martinez. Martinez told McNeil that if the murder took place, he would make sure that McNeil was paid the amount of money he wanted.

B. The Defense Case and the Disposition of the Charges

In response to McNeil's testimony as described above, the defense case consisted principally of (1) the testimony of Martinez, who denied that he had either sought to kill Jones or paid McNeil $350, and (2) a vigorous attack on McNeil's credibility. In his opening statement, and in his cross-examination of McNeil, Martinez's attorney suggested that McNeil had fabricated his story about Martinez in order to gain early release from prison. It was brought out that in the past McNeil had made incriminating statements not only against unincarcerated lawbreakers and inmates at MCC, but also against MCC guards and guards at another prison; it was suggested that McNeil would readily make false accusations in order to advance the time of his own release from prison.

During its redirect examination of McNeil, the government asked McNeil why he had not testified against the MCC guards whom he had accused. McNeil responded that he had not testified because the defendants had pleaded guilty. The government also introduced into evidence two letters from the United States Attorney for the Southern District of New York discussing McNeil's participation in an investigation of corrupt prison guards at MCC. One of the letters stated that "All seven of the guards with whom Mr. McNeil dealt were arrested and indicted. All have pleaded guilty...."

At the close of the evidence, the trial court dismissed the charges that Martinez, in violation of 18 U.S.C. Sec. 2, had committed the alleged offenses as an aider and abettor; and it dismissed count two, the intimidation count brought under Sec. 1512(a)(2), stating, "I don't see the need for it; it's duplicative and I think quite misleading. I don't see that this is an intimidation case." Counts one and three were given to the jury, which found Martinez guilty of attempted murder (count one) but not guilty of attempted retaliation (count three). Martinez was fined $1,000 and sentenced to three years' imprisonment, to be served consecutively to the five years' imprisonment to which he had been sentenced on the narcotics charge.

II. DISCUSSION

Martinez challenges his conviction principally on the grounds that (1) the evidence was insufficient to establish an attempt to murder; (2) the jury's verdict of guilty on the attempted murder count cannot stand because it is inconsistent both with the verdict of not guilty on the retaliation count and with the court's dismissal of the intimidation count; and (3) the trial court erred in admitting evidence of the guilty

pleas by MCC guards. We find no merit in these contentions.

A. The Sufficiency of the Evidence of Attempt

A person is guilty of an attempt to commit a crime if he or she (1) had the intent to commit the crime, and (2) engaged in conduct amounting to a "substantial step" towards the commission of the crime. United States v. Mowad, 641 F.2d 1067, 1073 (2d Cir.), cert. denied, 454 U.S. 817, 102 S.Ct. 94, 70 L.Ed.2d 86 (1981); United States v. Manley, 632 F.2d 978, 988-89 (2d Cir.1980), cert. denied, 449 U.S. 1112, 101 S.Ct. 922, 66 L.Ed.2d 841 (1981); United States v. Jackson, 560 F.2d 112, 117-20 (2d Cir.), cert. denied, 434 U.S. 941, 98 S.Ct. 434, 54 L.Ed.2d 301 (1977). We have held that "[a] substantial step must be something more than mere preparation, yet may be less than the last act necessary before the actual commission of the substantive crime...." United States v. Manley, 632 F.2d at 987-88; see United States v. Jackson, 560 F.2d at 118-19; United States v. Coplon, 185 F.2d 629, 632-33 (2d Cir.1950) (L. Hand, Ch. J.), cert. denied, 342 U.S. 920, 72 S.Ct. 362, 96 L.Ed. 688 (1952).

Viewing the evidence, as we must, in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed.2d 680 (1942); United States v. Esdaille, 769 F.2d 104, 108 (2d Cir.1985) (quotin...