U.S. v. Martinez

• Decision Date: 22 February 1996
• Docket Number: No. 94-3427,94-3427
• Citation: 76 F.3d 1145
• Parties: 43 Fed. R. Evid. Serv. 1138 UNITED STATES of America, Plaintiff-Appellee, v. Robert MARTINEZ, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1145

76 F.3d 1145

43 Fed. R. Evid. Serv. 1138

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

No. 94-3427.

United States Court of Appeals, Tenth Circuit.

Feb. 22, 1996.

Thomas M. Bradshaw (Daniel O. Herrington, also of Armstrong, Teasdale, Schlafly & Davis, Kansas City, Missouri, with him on the briefs), for Defendant-Appellant.

Tanya J. Treadway, Assistant United States Attorney (Randall K. Rathbun, United States Attorney, Kansas City, Kansas, with her on the brief), for Plaintiff-Appellee.

Before EBEL, LOGAN and BRISCOE, Circuit Judges.

LOGAN, Circuit Judge.

Defendant Robert Martinez, Jr. appeals his conviction and sentence on fifteen counts of bribery, in violation of 18 U.S.C. 201(b)(1)(A), fifteen counts of aiding and abetting supplementation of a government employee's salary, in violation of 18 U.S.C. § 209, and one count of conspiring to defraud the United States, in violation of 18 U.S.C. § 371. The district court sentenced him to thirty months in prison and imposed a $5341 fine.

On appeal, defendant contends that the district court erred in (1) excluding testimony to impeach a government witness; (2) allowing use of a prior inconsistent statement in violation of Fed.R.Evid. 801(d)(1)(B); (3) refusing to make a pretrial ruling addressing the admissibility of Fed.R.Evid. 609(a)(1) evidence; (4) denying a motion for severance; and (5) enhancing defendant's sentence because his offense involved more than one bribe.

In April 1990, defendant worked as marketing director at Bowling Green Hospital of Houston, Texas (Bowling Green), a private, for-profit psychiatric hospital. At a conference for Employee Assistance Program (EAP) coordinators he met Louis Garcia, an EAP coordinator for the U.S. Postal Service. ¹ Garcia visited Bowling Green in April 1990, and discussed Bowling Green's Hispanic Track Program (HTP) with defendant and the hospital's acting administrator. The defense presented evidence that Bowling Green contracted to pay Garcia $3500 per month in exchange for a minimum of thirty-five hours of training, consulting and advice regarding HTP. In contrast Garcia testified that he never provided any such services and that the monthly payments were in exchange for his patient referrals.

In November 1990, defendant began working for Parkview Hospital in Topeka, Kansas (Parkview), another private, for-profit psychiatric institution. Defendant had previously worked for the Parkview administrator, codefendant Mark Jackson. Jackson hired defendant as an independent contractor with the title "regional business development coordinator," to do marketing for Parkview and Springwood Hospital in Virginia, another hospital under the same ownership. The following year, Parkview employed defendant as its Regional Service Director.

Defendant invited Garcia to visit Parkview in November 1990, where Garcia signed a consulting agreement with Parkview that recited an arrangement similar to his prior agreement with Bowling Green. The parties renewed their written agreement in October 1991 on similar terms; the renewal also gave Garcia a $3000 bonus for ten recent patient referrals to Parkview. This consulting agreement was terminated in December 1991; Garcia received his last payment from Parkview in January 1992. Garcia referred forty-three postal service employees to Parkview, including two after he received that final payment.

Both parties presented evidence concerning the level, if any, of consulting and marketing work Garcia actually performed on behalf of Bowling Green, Parkview and Springwood Hospitals. Garcia, who had pleaded guilty to one count of illegal supplementation of his salary, was given probation and a fine, and became a principal government witness. He testified that the agreement was merely an effort to legitimize payments to him for patient referrals. Defendant testified to the contrary, and detailed Garcia's work under the contract. The government's evidence established that defendant was Garcia's primary contact and was in charge of referrals, and that defendant effectuated payments to Garcia under the referral agreement and for other extras.

I

We first consider the three evidentiary issues. We review rulings excluding evidence for abuse of discretion, and "reverse only if the exclusion of the evidence is so significant that it results in 'actual prejudice' because it has a 'substantial and injurious effect or influence in determining the jury's verdict.' " United States v. Fingado, 934 F.2d 1163, 1164 (10th Cir.) (citations omitted), cert. denied, 502 U.S. 916, 112 S.Ct. 320, 116 L.Ed.2d 262 (1991). We may uphold evidentiary rulings on any ground supported by the record, "even if not relied upon by the district court." United States v. Willie, 941 F.2d 1384, 1396 n. 9 (10th Cir.1991), cert. denied, 502 U.S. 1106, 112 S.Ct. 1200, 117 L.Ed.2d 440 (1992).

A

Defendant's wife and Larry Gomez testified on his behalf. The district court excluded portions of Mrs. Martinez' testimony as hearsay and inadmissible under Fed.R.Evid. 608(b). The district court sustained the government's Fed.R.Evid. 608(b) objection to part of Gomez' testimony, also ruling that it had marginal probative value.

According to her proffer, Mrs. Martinez would have testified about a conversation she had with Garcia in which he requested that she cash a $3500 Bowling Green check payable to Garcia. She stated that, after Garcia spoke with her supervisor at the bank where she worked, she endorsed the check, retained $350 to repay a loan to Garcia from defendant, and then defendant delivered to Garcia $400 in cash plus a $2750 money order. Mrs. Martinez also recounted a conversation she overheard between defendant and Garcia in which Garcia told defendant that as long as Garcia performed any consulting work on his own time it was not a problem for the postal service. Defendant also asserts that Gomez would have testified that Garcia represented he could legally perform consulting work on his own time, and that several years before, in 1985, Gomez and Garcia had prepared to start an EAP business.

With regard to the hearsay objection, the district court concluded there was hearsay in Mrs. Martinez' proffer recounting the events surrounding negotiation of the check from Bowling Green payable to Garcia. As to the Rule 608(b) objection, the district court held that Mrs. Martinez' proffered testimony was offered to challenge witness Garcia's credibility with extrinsic evidence that he lied about paying defendant a kickback during defendant's tenure at Bowling Green. The district court refused Gomez' testimony for the same reason: he would have impeached Garcia's credibility as to Garcia's representations that in 1985 he could legally perform consulting work on his own time.

Defendant contends that Mrs. Martinez' proffer was not extrinsic evidence, and that it rebuts Garcia's testimony establishing the inception of the conspiracy, defendant's knowledge and intent, and his demand for kickback. Defendant asserts that because the government raised the kickback issue in its case-in-chief, Mrs. Martinez' testimony that her husband did not receive a kickback is not collateral. As to her attempted recounting of Garcia's purported representations he could legally perform consulting work, defendant argues that Mrs. Martinez' testimony was not offered for the truth of Garcia's representations and therefore is not hearsay; and that these statements would have negated defendant's state of mind and intent to commit a crime. Defendant argues Gomez' testimony would establish that Garcia held himself out as available to perform consulting work on his own time.

The government responds that it primarily objected to Mrs. Martinez' testimony as hearsay. It contends also that the defense proffer established that her testimony was offered for the purpose of proving the truth of the statements, i.e., that the cash Mrs. Martinez retained merely repaid a loan and was not a kickback. Finally, the government argues that Rule 608(b) also precludes Mrs. Martinez' testimony: whether the $350 she retained was a kickback to defendant is collateral to the question whether defendant committed bribery while working at Bowling Green.

We agree with the district court that Mrs. Martinez' testimony about the Bowling Green check contained significant hearsay: of Garcia's requests and statements about a loan repayment to defendant; of defendant's statements requesting her to cash the check, wire funds to Garcia, and defendant's activity delivering the cashier's check and cash to Garcia.

Mrs. Martinez' proffered testimony that Garcia represented that his work with Parkview was not a problem with the postal service, however, is not hearsay. Defendant ultimately testified to the substance of his wife's proffer. Defendant argues, however, that this testimony would have been more believable from his wife than himself because of his criminal record. Nonetheless, defendant has not shown that he suffered actual prejudice because the district court disallowed this portion of his wife's testimony. We are satisfied that in the course of approximately a three-week trial, this single piece of cumulative evidence did not influence the jury's guilty verdict.

We also agree with the district court's application of Rule 608(b), which generally excludes extrinsic evidence of a witness' credibility. Fed.R.Evid. 608(b) reads as follows:

(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the...