USA. v. Martin
| Decision Date | 27 August 1999 |
| Docket Number | No. 98-4000,98-4000 |
| Citation | 189 F.3d 547 |
| Parties | (7th Cir. 1999) United States of America, Plaintiff-Appellee, v. Henry L. Martin, Defendant-Appellant |
| Court | U.S. Court of Appeals — Seventh Circuit |
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 98 CR 62--Thomas J. Curran, Judge.
Before Bauer, Flaum, and Manion, Circuit Judges.
During Henry Martin's trial for bank robbery he asserted as part of his defense that because he was financially secure he had no motive to rob the bank. While cross- examining Martin, the prosecutor inquired about an apparent inconsistency between Martin's assertion of financial security and the indigence he claimed in the financial disclosure form which he filed to obtain a free attorney. As Martin's responses to the prosecutor were somewhat ambiguous and contradictory, the district judge questioned Martin further on some of the points raised. Because this questioning occurred in the presence of the jury, Martin moved for a mistrial claiming that the nature and tone of the court's inquiry amounted to judicial advocacy for the prosecution and suggested to the jury that the court thought Martin was untruthful. The district court denied the motion. Martin appeals and we affirm.
At 6:53 p.m., on March 19, 1998, a woman (later identified as Lisa McElwee) entered a Tri City National Bank branch in Brown Deer, Wisconsin and displayed a note which read: "give me your money, not bait," and verbally repeated the command.1 She made off with $1,212, ran into the parking lot, and got into a black car driven by a man. Witnesses testified that the man opened the driver's side door and after she dove into the car over his lap he shut the door, waved to her pursuers, and then sped away. About an hour after the robbery, Henry Martin went to the police and told them that he had been driving in the parking lot near the bank when a woman jumped into his car and forced him to drive her away. The getaway car was his, and to preempt police tracking his license number he presented this carjacking explanation.
On March 25, 1998, the Milwaukee police arrested McElwee and Martin while they were sitting in Martin's car after purchasing some heroin. When confronted with a photograph from the bank surveillance camera, McElwee admitted that the picture was of her and told the police that Martin was the driver of the getaway car. She related that she had known Martin for seven years, had previously worked with him at the Social Development Commission, and since 1993 she and Martin frequently would consume heroin together. When the police showed Martin the surveillance photograph he responded that the robber depicted in it was the woman who hijacked his car, but that McElwee was not that person. Subsequently, a grand jury indicted Martin and McElwee for one count of bank robbery in violation of 18 U.S.C. sec.sec. 2113(a) & 2.
McElwee entered into a plea agreement, testified against Martin at his trial, and related how the robbery transpired. On the day of the robbery, Martin picked her up at her house and they went and consumed heroin together. Later, as they were sitting in his car, they hatched their plot after hearing on the radio about a successful bank robbery. McElwee testified that Martin eventually drove her to the bank which she robbed, and that they escaped in his car. They drove to McElwee's mother's house where they counted the money. Martin then told McElwee that he was going to tell the police that a woman shoplifter jumped into his car and forced him to drive away, as he was afraid that someone had seen his license plate. So about an hour after the robbery, Martin went to the police station to report that he had been a victim of a carjacking near the Tri City National Bank. The police immediately doubted his story. They obtained fingerprints from his car which matched those taken during a prior arrest of McElwee. The police then examined a photograph of McElwee from police records and learned that her facial profile matched pictures of the robber taken by the Tri City Bank surveillance cameras.
As the evidence overwhelmingly conflicted with Martin's version of events, he was forced to abandon his initial story and finally admitted at trial that he drove McElwee to the bank, that she robbed the bank, and that the woman who jumped into his car was McElwee. He also admitted the obvious: he had concocted the carjacking story. Martin denied, however, that he knew McElwee was going to rob the bank and stated that he played no role in planning the robbery and did not receive any of the money.
With his credibility severely damaged, a major part of Martin's defense was that he had no need to rob a bank, as he had been receiving severance pay, his wife had a good job, and he had plenty of art, jewelry, and electronic goods which he could have liquidated. So on direct examination, Martin's attorney inquired into these subjects. Despite the leading questions, Martin's answers were vague and ambiguous.
Q. When was the last time you had been employed?
A. I had been employed full-time I think the last date was July 1st of '97.
Q. Were you doing some side work?
A. Yeah. Q. Can you describe that for the jury?
A. Well, periodically I would help people with their pro se petitions.
* * *
Q. Would you receive money to do that?
A. Sometimes.
* * *
Q. How were you paying the bills?
A. First of all I had a pension after my separation from the commission, severance, in the amount of $23,000. I had unemployment compensation. I had tax refunds and things of that nature. My wife makes about $40,000 a year.
Q. Was your financial situation tight at that time?
A. Very tight. Very tight.
Q. Were you getting by?
A. Oh, yeah.
Q. And were mainly getting by because your wife was working?
A. Yeah, yeah, mainly.
Q.In addition, did you have assets that you could have liquidated?
A. Yeah.
Q. Can you give us a brief description of what those assets were?
A. Well, I have a pretty nice art collection with some nice originals and some prints that are very valuable, and I would estimate they're probably-- if I had liquidated them, easily 25, $30,000.
Q. Did you have any electronic equipment that was valuable?
A. Oh, yeah. I have about eight to $10,000 worth of electronic equipment.
On cross-examination, the Assistant United States Attorney began probing in these areas, especially because Martin's testimony seemed to conflict with the assertion of poverty that he made to obtain free legal counsel. Martin first agreed with her statement that he had not worked since July 1997.
Q. You haven't worked since July 1st 1997.
A. That's correct.
But recall that Martin previously testified that he had worked sporadically as a paralegal. Martin's subsequent answers were ambiguous on this point, as he mentions receiving money from an attorney and receiving a tax refund.
Q. Well, at the time of the robbery occurred you were pretty much tapped out.
A. No, I just had gotten a $2300 tax refund and I also had just gotten $600 from Bob Sutton, an attorney in Milwaukee, and $1700 from a friend named Larnell Friend, F-R-I-E-N-D.
Martin then reasserted that he had not been working.
Q. After you were arrested, officers of the court asked you certain questions regarding your finances.
A. Yes.
Q. And they asked you about what your income was and you indicated that it was zero.
A. My income was zero. I didn't have any work.
Martin similarly equivocated on whether government officials previously asked him about his assets. Q. And you were also asked about your assets.
A. Uh-huh.
Q. Correct?
A. Yes.
Q. And you denied having any assets. A. I didn't even talk to anybody about my assets. But no, I didn't deny anything. Counsel was appointed for me before I even spoke to anybody.
* * *
Q. At some point someone asked you about money available to you, or items worth money available to you.
A. No, ma'am. Nobody asked me that.
Q. So someone willy-nilly assumed that you had nothing.
A. No, they knew I didn't have a lot of cash lying around. And I guess they assumed that I couldn't afford counsel in this matter. And I couldn't. And that's no lie. I could not afford counsel in this matter.
But later, Martin admitted that he in fact had talked to someone about his assets.
Q. Going back to something that we had talked about earlier, which was your financial situation, and the form that you needed to fill out in order to obtain a court-appointed attorney.
A. Miss, I never filled out a form.
Q. I'm handing you what has been marked as Exhibit Number 14. Would you look at that for a minute.
A. Okay. Uh-huh.
Q. And on the top it says, United States District Court, Eastern District of Wisconsin.
A. Right.
Q. And there's your name, Martin Henry, Leroy.
A. Uh-huh.
Q. And then let's turn, this is a one, two, three- -four page document.
A. I signed it. I didn't fill that out. I signed that, yes.
Q. You signed that.
A. Uh-huh, yes.
Q. Now, you're saying you didn't fill it--
A. No, that's not my writing. You can see the difference.
Q. All right, it's not you. But in order for you to sign it, these are questions that someone asked you. Correct?
A. Yeah, I believe they asked them or they had them. I don't know how they got them.
Q. They asked you.
A. I believe that.
Q. This isn't information anyone could obtain without your assistance, correct?
A. I believe that.
Next, the prosecutor addressed Martin's assertion that he had a valuable art collection, despite the fact that he omitted mention of this on his financial disclosure form.
Q. All right. Now I'd like you to turn your attention to "other assets." And it is checked "none." Do you see that?
A. Yes. Uh-huh.
Q. And that's an answer you provided.
A. Yeah. Uh-huh.
Q. And here are examples: Cash on hand, mortgages held by you, or other things of value that you own or...
To continue reading
Request your trial
-
U.S. v. Paladino
...the district judge signaled to the jury that he thought the defendant was guilty. Such signaling is improper. United States v. Martin, 189 F.3d 547, 553 (7th Cir.1999); Collins v. Kibort, 143 F.3d 331, 336 (7th Cir.1998); United States v. Davis, 285 F.3d 378, 381-82 (5th Cir.2002); United S......
-
U.S. v. Davis
...the purposes of benefitting the jury in its understanding of the evidence, and the court may not appear to be partial"); U.S. v. Martin, 189 F.3d 547, 553 (7th Cir.1999) ("a judge's discretion to question witnesses is not unfettered. A judge cannot assume the role of an for either side."); ......
-
United States v. Rivera-Rodríguez
...that the concern with judicial interrogation is not with “the damaging truth that the questions might uncover.” United States v. Martin, 189 F.3d 547, 554 (7th Cir.1999). Accordingly, if a trial court's questioning of a witness exposes bad facts, inconsistencies, or weaknesses in the case i......
-
Martin v. U.S.
...conviction was affirmed by the Seventh Circuit and the United States Supreme Court denied a writ of certiorari. See United States v. Martin, 189 F.3d 547 (7th Cir.1999), cert. denied, 528 U.S. 1097, 120 S.Ct. 840, 145 L.Ed.2d 705 (2000). He then filed this motion asking for collateral relie......
-
§ 2.02 Role of the Judge
...as commenting on the evidence. --------Notes:[3] Quercia v. United States, 289 U.S. 466, 469 (1933). See also United States v. Martin, 189 F.3d 547, 553 (7th Cir. 1999) ("Along with other circuits, we have frequently reminded litigants that the function of a federal trial judge is not that ......
-
§ 2.02 ROLE OF THE JUDGE
...well as commenting on the evidence.--------Notes:[3] Quercia v. United States, 289 U.S. 466, 469 (1933). See also United States v. Martin, 189 F.3d 547, 553 (7th Cir. 1999) ("Along with other circuits, we have frequently reminded litigants that the function of a federal trial judge is not t......