United States v. Martinez, 72-3133.
| Decision Date | 12 October 1973 |
| Docket Number | No. 72-3133.,72-3133. |
| Citation | 486 F.2d 15 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Justo Fernan MARTINEZ et al., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
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Jack V. Eskenazi, Federal Public Defender, court-appointed, T. Sakowitz, Asst. Federal Public Defender, Miami, Fla., for Martinez and Huila.
Max P. Engel, David B. Javits, Miami, Fla., for Soris.
Robert W. Rust, U. S. Atty., J. Daniel Ennis, Bruce E. Wagner, Asst. U. S. Attys., Miami, Fla. for plaintiff-appellee.
Before BELL, GOLDBERG and SIMPSON, Circuit Judges.
We review on this appeal the judgments of conviction and sentence following jury verdicts of guilty of Justo Fernan Martinez, Oswaldo Huila, and Lorenzo Padilla-Soris. The charges arose from the importation into the United States of approximately 28 pounds of marijuana. We vacate or reverse the convictions of all three appellants, and remand for further proceedings in the district court.
On August 16, 1972, agents of the United States Customs Service began surveillance of the normal docking berth on the Miami River of the M/V MONTEGO, which was due to arrive that evening from Turbo, Colombia. From vantage points approximately 100 yards away from the dock the agents observed the MONTEGO dock at approximately 9:00 P.M. that evening. The surveillance continued into the early morning hours of August 17th. Shortly after 1:00 A.M. the agents using binoculars observed someone leave the ship with a package under his arm. This person, identified later as the defendant-appellant Huila, walked alongside the ship toward the bow, where he placed the package on the wharf and returned to the ship. A short time later Huila came back and moved the package to a new location a few feet away and once more returned to the ship.
Two of the customs agents at this time moved to within a few yards of the position of the package and resumed their surveillance. About 25 minutes later the agents noticed the brakelights of an automobile near a warehouse immediately adjacent to the wharf. They saw a person who was identified later as the defendant-appellant Martinez, walk from the direction of the warehouse toward the place where Huila had last left the package. Martinez picked up the package and started back toward the parked automobile near the warehouse. The two customs agents watching from near the package then emerged and attempted to arrest Martinez, after identifying themselves by stating in English that they were United States Customs agents.
Martinez reacted by swinging the package in a wide arc in the direction of the agents. He either released the package or lost his grip on it and it sailed into the Miami River. Martinez was subdued after a short scuffle, whereupon one of the agents dove into the river and retrieved the package which Martinez had thrown.1
While these events were taking place, another customs agent approached the car in which Martinez had ridden to the vicinity of the warehouse. A third man, later identified as the defendant-appellant Padilla-Soris, had remained in the automobile behind the wheel. The customs agent attempted to identify himself in English to Padilla-Soris.2 Padilla-Soris started the car at once and drove away. Still another agent, waiting in a government vehicle at the entrance to the dock area pursued Padilla. Speaking Spanish and using a loud speaker he identified himself as a customs agent. Padilla-Soris then stopped his vehicle at the side of the road and surrendered to the agent.
Martinez and Padilla-Soris were taken to customs headquarters for interrogation. At the same time the substance contained in the packages retrieved from the water was tested. It was determined that the substance was marijuana.
At the outset of the questioning, Martinez signed a waiver of his Miranda rights3 and proceeded to give a statement to the customs officials. In the course of his statement Martinez furnished the name of the man who had off-loaded the marijuana from the MONTEGO as Huila.
For reasons not entirely clear from the testimony Huila was not arrested at the same time that Martinez and Padilla-Soris were taken into custody, but some time later was arrested and taken to customs headquarters for interrogation. Whether Huila was arrested before or after he had been identified by Martinez as the person depositing the marijuana on the dock is not clear from the testimony.
The grand jury indicted Martinez, Huila, and Padilla-Soris charging: (i) Count I: conspiracy to import, (ii) Count II, actual importation of, and Count IV, possession with intent to distribute a Schedule I controlled substance, to wit the 28 pounds of marijuana.4 Additionally Count III charged Huila with distribution of marijuana5 and Count V charged Martinez with assaulting a federal officer.6
The trial occurred on September 21 and 22, 1972. Prior to the commencement of the trial, Martinez, through his attorney, tendered a plea of guilty to Count II of the indictment, which charged importation of the marijuana. The prosecution apparently had agreed in exchange to dismiss the remaining charges against Martinez. The trial judge, in compliance with Rule 11, F.R.Crim.P., questioned Martinez to determine whether his plea was knowingly and voluntarily entered. In the course of this inquiry, Martinez asserted that his waiver of his Miranda rights during post-arrest interrogation had been obtained in exchange for a promise by customs agents that "nothing would happen to him." This prompted the trial judge to refuse to accept Martinez' plea of guilty, on the apparent ground that the plea might not have been voluntarily entered.7 Counsel for Martinez attempted to persuade the district judge that, independently of the coerced statement, the government possessed sufficient evidence upon which to convict him. Further, Martinez had admitted his guilt of the charge of importation. The judge however, persisted in refusing to accept Martinez' plea under the circumstances.
In view of this ruling, counsel for Padilla-Soris at this juncture renewed his motion for severance, earlier denied with other pre-trial motions. He was anxious to have Martinez available to testify for Padilla-Soris, supporting his defense as Martinez had offered to do earlier. The availability of this testimony for Padilla-Soris depended upon Martinez' pleading guilty and not being on trial when called to the stand. It appeared certain that Martinez would refuse to take the stand at a joint trial with Padilla-Soris and Huila. The court once more denied the motion for severance.
Martinez' counsel, a member of the Public Defender's staff, was court-appointed for both Martinez and Huila. He now moved for severance as to Huila, protesting that failure to accept Martinez' tendered guilty plea would prejudice either Huila's or Martinez' rights to a fair trial if his clients were tried jointly.8 The court denied this motion and the trial proceeded against all three defendants.
As the government approached the close of its case, it became apparent that Martinez was given an incomplete and unacceptable statement of his Miranda rights by the Spanish speaking agent who interrogated him after arrest. It developed that this customs agent had told Martinez that the trial judge would be informed as to whether he waived his right to counsel at the interrogation. This left an obvious implication that his failure to waive right to counsel would be construed as unwillingness to cooperate to his detriment at trial. It was also shown that Martinez was told that the charge against him was smuggling marijuana, without mention of a possible charge of assaulting a federal officer. On the basis of these disclosures the trial judge ruled that the statement was inadmissible as coerced.
With the resolution of the problem of the coerced statement, Martinez' counsel once more tendered Martinez' plea of guilty to Count II of the indictment. The judge at this point appeared more favorably disposed toward acceptance of the plea and questioned the government as to its position. Government counsel stated that the offer to drop all charges against Martinez other than Count II in exchange for a plea of guilty to that count was rescinded, since the government had by then undertaken the burden of proving all of the counts. With the matter of the guilty plea thus disposed of, the court-appointed counsel for Martinez and Huila again moved that Huila's trial be severed so Martinez' exculpatory testimony could be available to Huila. Again the severance motion was denied and the government rested its case in chief.
At this time, the court granted counsel's motion on behalf of Padilla-Soris for judgment of acquittal as to Counts II and IV of the indictment. The court refused, however, to direct acquittal of Padilla of the conspiracy charge. The trial then proceeded with the presentation of evidence by the defendants.
The case was submitted to the jury and all defendants were found guilty as charged of the counts remaining for trial. Judgments of conviction and sentence ensued, followed by appeals by each defendant, asserting various grounds of error in the trial below, which we now consider.
Martinez raises a single point by his appeal: that error was committed by the trial judge when he refused to accept his tendered plea of guilty to Count II of the indictment against him. Consideration of this question must start with the well-established proposition that a "criminal defendant has no absolute right to have his guilty plea accepted by the court." Lynch v. Overholser, 1962, 369 U.S. 705, 719, 82 S.Ct. 1063, 1072, 8 L.Ed.2d 211, 220. For example, a federal judge must refuse to accept a guilty plea where the requirements of Rule 11, F.R.Crim.P., cannot be met.9 It was for the very reason that the trial judge felt that the voluntariness ...
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