U.S. v. Martinez

• Decision Date: 28 January 1988
• Docket Number: No. 86-1377,86-1377
• Citation: 837 F.2d 900
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Franke Eugenio MARTINEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 900

837 F.2d 900

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

No. 86-1377.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 14, 1987.

Decided Jan. 28, 1988.

Gary Clifford Korn, Asst. U.S. Atty., Tucson, Ariz., for plaintiff-appellee.

Michael E. Tigar, The University of Texas Law School, Austin, Tex., for defendant-appellant.

Appeal from the United States District Court for the District of Arizona.

Before FLETCHER, WIGGINS and NOONAN, Circuit Judges.

FLETCHER, Circuit Judge:

Appellant Martinez appeals his conviction for making a false statement in violation of 18 U.S.C. Sec. 1623. We reverse.

I. FACTS

On September 3, 1980, appellant Martinez entered the United States from Mexico at the Nogales, Arizona, Port of Entry. At the time, a warrant was outstanding for his arrest arising out of charges pending against him in Colorado.

Martinez identified himself to Custom Officials in English as a U.S. citizen. He stated that he worked in a John Deere plant in Des Moines, Iowa. Inspectors found a Mexican passport bearing Martinez's photograph and identifying him as "Jose Reynoso Diaz," a Mexican citizen, and a Mexican military card in his luggage.

When asked to identify the passport, appellant ran out of the building and headed north into the United States. Upon apprehension, he spoke a few sentences in English but then began speaking Spanish. Officials read him his Miranda rights in both languages and turned him over to the Immigration and Naturalization Service ("INS"). The next day, an INS agent interviewed appellant, who said his name was Jose Reynoso Diaz and that he was a Mexican citizen. In fact, he had been living for some seven years in exile in Mexico under that name. His passport showed that a U.S. consul had issued him a nonimmigrant visa for entry into the United States in 1979.

On September 5, a criminal complaint was filed charging appellant with making a false claim of U.S. citizenship and with eluding inspection by INS officers. Later that day, he was brought before a magistrate for an initial appearance. Appellant requested an attorney. The magistrate questioned him in order to determine his eligibility for appointed counsel. During this questioning, appellant stated again that his name was Reynoso Diaz and that he was a Mexican citizen. When he was asked to sign the financial status report, he signed it with an "X."

In exchange for appellant's plea of guilty to eluding inspection, the government dropped the charge of a false claim of citizenship. Martinez was sentenced to 10 days' imprisonment. While he was serving his sentence, INS officers in Arizona ran a check on his fingerprints and learned he was, in fact, Franke Martinez, an attorney in Colorado, and a federal fugitive. Martinez was removed to Colorado, tried on the charges pending there, and found not guilty.

Two months later, in January 1985, appellant was indicted on two counts of having made false statements to government agents under 18 U.S.C. Sec. 1001, and one count of having made a false statement to the magistrate when questioned concerning his financial eligibility for counsel in violation of 18 U.S.C. Sec. 1623. In May 1986, the district court ordered that all charges against appellant be dismissed on the grounds of vindictive prosecution. This court reversed the dismissal. United States v. Martinez, 785 F.2d 663, 670 (9th Cir.1986).

Following trial, Martinez was acquitted by a jury of the two Sec. 1001 counts, but convicted on the Sec. 1623 charge. The court imposed a five-year sentence of imprisonment, suspended all but 90 days of it, and ordered probation for four and a half years.

After a hearing, the court denied appellant's post-trial motion for acquittal. Martinez timely appealed.

II. JURISDICTION

We have jurisdiction over appeals from final judgments of conviction pursuant to 28 U.S.C. Sec. 1291.

III. DISCUSSION

Appellant attacks his conviction on the grounds that the government failed to establish the materiality of an alias to eligibility for appointed counsel. Materiality under Sec. 1623 is a question of law, United States v. Prantil, 764 F.2d 548, 557 (9th Cir.1985), and therefore subject to de novo review. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.1984) (en banc).

To sustain a perjury conviction under section 1623, the government must prove that the defendant made a "false material declaration." 18 U.S.C. Sec. 1623(a). A false statement is not perjurious unless material. Prantil, 764 F.2d at 556; United States v. Ponticelli, 622 F.2d 985, 989 (9th Cir.1980).

The indictment in appellant's case stated that the purpose of the hearing before the magistrate was to "determine the financial status of the defendant for the appointment of counsel." Appellant argues that since the government neither alleged that the financial information he offered was untrue nor offered any evidence to show what effect the use of another name would have on an indigency determination, it failed to prove materiality.

Since materiality is a legal question, the government need not prove it beyond a reasonable doubt. But since it is an element of a Sec. 1623 offense, the burden still rests with the government to advance some showing. In the more common context in which Sec. 1623 prosecutions appear--lying before a grand jury--other circuits have held that the government must establish materiality by showing a "nexus" between the false statements and the scope of the grand jury investigation. See United States v. Farnham, 791 F.2d 331, 333 (4th Cir.1986); United States v. Berardi, 629 F.2d 723, 727 (2d Cir.1980). The government concedes that in the case before us, it bore the burden of showing a nexus between Martinez's statement and the scope of the tribunal's investigation.

In the grand jury context, a false statement is material if it is relevant to any matter before the grand jury and if its falsity would have the natural tendency to influence the grand jury's investigations. Prantil, 764 F.2d at 557; United States v. Anfield, 539 F.2d 674, 678 (9th Cir.1976). The government need not show that the falsity in fact impeded its inquiries; it is enough if it "has a tendency to influence, impede, or hamper a tribunal from pursuing its investigation." Anfield, 539 F.2d at 678; see also United States v. Percell, 526 F.2d 189, 190 (9th Cir.1975) (commenting on a conviction for perjury before the grand jury, the court noted that materiality is tested as of the time the false statement is given. Later proof that a truthful declaration would not have helped the government does not make the statement immaterial). In the sentencing context, our court found use of an alias material where it prevented the judge from finding the convicted person's prior criminal record. United States v. Plascencia-Orozco, 768 F.2d 1074, 1077 (9th Cir.1985). Although the court expressed the test in terms of actual obstruction of justice, it was based on the facts of that case. It would seem the proper test is to judge materiality in terms of its potential for obstructing justice at the time the statement is made, rather than to determine whether it actually misled the court.

To establish materiality, the government offered only the fact that the hearing was to determine financial eligibility for appointed counsel. It did not suggest how the identity of the defendant had any bearing on this issue. The sole purpose of such a hearing is to ascertain whether the defendant can pay for his own counsel...