United States v. Martinez

Filed: April 29, 2003 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 02-4607 (CR-01-316-AMD) United States of America, Plaintiff - Appellee, versus Latisha May Martinez, Defendant - Appellant. O R D E R The court amends its opinion filed March 17, 2003, as follows: On page 2, second full paragraph of text, line 2 -- the reference to “Fed. R. Evid. 803(b)(4)” is corrected to read “Fed. R. Evid. 804(b)(3).” For the Court - By Direction /s/ Patricia S. Connor Clerk UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT 4444444444444444444444444444444444444444444444447 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 02-4607 LATISHA MAY MARTINEZ, Defendant-Appellant. 4444444444444444444444444444444444444444444444448 Appeal from the United States District Court for the District of Maryland, at Baltimore. Andre M. Davis, District Judge. (CR-01-316-AMD) Submitted: February 26, 2003 Decided: March 17, 2003 Before WIDENER and TRAXLER, Circuit Judges, and HAMILTON, Senior Circuit Judge. ____________________________________________________________ Affirmed by unpublished per curiam opinion. ____________________________________________________________ COUNSEL Barry J. Pollack, Leslie Paul Machado, NIXON PEABODY, L.L.P., Washington, D.C., for Appellant. Thomas M. DiBiagio, United States Attorney, Joseph L. Evans, Assistant United States Attorney, Balti- more, Maryland, for Appellee. ____________________________________________________________ Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). ____________________________________________________________ OPINION PER CURIAM: A jury convicted Latisha Martinez of bank robbery (Count 1), armed bank robbery (Count 2), and use of a firearm during a crime of violence (Count 3). The district court sentenced her to a 147-month term of imprisonment, consisting of sixty-three months on Counts 1 and 2 and a consecutive eighty-four-month term on Count 3. Martinez appeals her convictions and sentence, contending that the district court erred in excluding testimony and in applying a two-level enhancement under U.S. Sentencing Guidelines Manual § 2B3.1(b)(3)(A) (2001).* Finding no reversible error, we affirm. At trial, Martinez sought to introduce the testimony of a defense investigator pursuant to Fed. R. Evid. 804(b)(3), regarding statements made by Martinez' half-brother, Gabriel Rivera, during interviews with the investigator and defense counsel concerning the identity of the fourth person involved in the bank robbery. Although the district court found that Rivera was unavailable as a witness and that his statements were against his penal interest, the court concluded, given the totality of the circumstances, that there was a lack of corroborat- ing evidence tending to show that the statements were trustworthy. See United States v. Bumpass, 60 F.3d 1099, 1102-03 (4th Cir. 1995). ____________________________________________________________ * In a footnote in her brief filed in this court, Martinez also contends that her rights under the Confrontation Clause were violated because she was denied the opportunity to cross-examine a witness about conflicting statements he made regarding his criminal record. Martinez did not list this issue in her Statement of the Issues on appeal, nor did she develop this argument or support it with published authority. See Fed. R. App. P. 28(a)(5), (a)(9)(A). We therefore find that this issue is not properly before us. See Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999) ("Failure to comply with the specific dictates of . . . [Rule 28] with respect to a particular claim triggers abandonment of that claim on appeal.") (internal citations and quotation marks omitted). 2 We have carefully reviewed Martinez' arguments on appeal and agree with the district court that "corroborating circumstances [did not] clearly indicate the trustworthiness of the statement[s]." Id. at 1102. We therefore find no abuse of discretion in the district court's exclu- sion of the investigator's testimony. See United States v. Robinson, 275 F.3d 371, 383 (4th Cir. 2001) (stating standard of review), cert. denied, 535 U.S. 1006 (2002), and cert. denied, 122 S. Ct. 1945 (2002). Martinez also asserts that the district court erred by enhancing her base offense level by two levels after finding that a bank teller sus- tained a significant bodily injury. See USSG § 2B3.1(b)(3)(A); USSG § 1B1.1, comment. (n.1(b)) (defining bodily injury). Martinez used the teller's back as a springboard as she (Martinez) vaulted over the teller counter to exit the bank, and another robber hit the teller on the head with the barrel of an assault rifle. The teller suffered contusions on her back and neck for which she sought medical treatment. See United States v. Hargrove, 201 F.3d 966, 969-70 (7th Cir. 2000) (col- lecting cases where similar injuries found to be significant and stating that injured neck muscle "would ordinarily necessitate medical atten- tion, not only because of the fact that an injured neck muscle is pain- ful and warrants medical attention, but also to ensure that a more serious condition . . . did not exist"). We find no clear error in the dis- trict court's application of the enhancement. See United States v. Lan- caster, 6 F.3d 208, 210 (4th Cir. 1993) (providing standard of review); see also Easley v. Cromartie, 532 U.S. 234, 242 (2001) (defining clear error). Accordingly, we affirm. We dispense with oral argument because the facts and legal contentions are adequately presented in the materi- als before the court and argument would not aid the decisional pro- cess. AFFIRMED 3