United States v. Martinez

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-4862

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

FERMIN GITERREZ MARTINEZ,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
Chief District Judge. (3:05-cr-00338-RJC)

Argued: May 14, 2008 Decided: June 24, 2008

Before WILKINSON and KING, Circuit Judges, and Jackson L. KISER,
Senior United States District Judge for the Western District of
Virginia, sitting by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: John J. Cacheris, DOZIER, MILLER, POLLARD & MURPHY, LLP,
Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray,
OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina,
for Appellee. ON BRIEF: Gretchen C. F. Shappert, United States
Attorney, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Defendant Fermin Giterrez Martinez appeals from his February

2006 conviction in the Western District of North Carolina for

possession of a firearm in relation to a drug trafficking crime, in

violation of 18 U.S.C. § 924(c)(1). Martinez’s primary contention

on appeal is that the principles of Rovario v. United States, 353

U.S. 53 (1957), and Brady v. Maryland, 373 U.S. 83 (1963), were

contravened when the prosecution failed to make timely and adequate

disclosure to the defense of identity and impeachment information

concerning its testifying confidential informant. As explained

below, although such disclosure may have been tardy and inadequate,

it was not so prejudicial as to warrant relief. We therefore

affirm.

I.

Martinez left his native Mexico at the age of seventeen and

illegally entered the United States. He thereafter married an

American citizen and was a legal resident in this country for a

short period of time. After divorcing his wife, however,

Martinez’s legal status was revoked, and he remained in this

country illegally. The conviction that he challenges in this

appeal was premised on his possession of a firearm in relation to

a drug transaction with a confidential police informant named

2
Emanuel Barajas. At the time of the offense, Barajas was also an

illegal alien.

A.

On September 27, 2005, a grand jury in the Western District of

North Carolina returned a three-count indictment against Martinez.

It charged him with (1) knowingly and intentionally possessing

methamphetamine with intent to distribute, in contravention of 21

U.S.C. § 841(a)(1) (Count One); (2) being an illegal alien in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(5)

(Count Two); and (3) possessing a firearm during and in relation to

a drug trafficking crime, in contravention of 18 U.S.C. § 924(c)(1)

(Count Three). Martinez was arraigned in the district court on

October 27, 2005, and his case was scheduled for a docket call on

November 7, 2005. After he filed a motion for a continuance on

November 1, 2005, the docket call was rescheduled for February 6,

2006. As further explained below, his trial (on Count Three only)

began on February 7, 2006, and it concluded with a guilty verdict

the next day.

On November 16, 2005, Martinez’s court-appointed defense

lawyer filed a comprehensive set of pretrial criminal discovery

motions, requesting disclosure from the prosecution of, inter alia,

all Rovario and Brady information and evidence, including the

following: (1) whether it intended to call any confidential police

informants as witnesses at trial; (2) the relevant contact

3
information of such informants; (3) information concerning meetings

between government agents and the informants; (4) information

concerning any payments made to such informants; (5) any

inculpatory information concerning the informants; and (6) all

exculpatory evidence, including contact information, for

prosecution witnesses. Martinez also requested that the

prosecution make its confidential informants available to be

interviewed by the defense.

More than two months later (and six days before trial), the

United States Attorney wrote to Martinez’s lawyer and first

disclosed the name of its informant, Emanuel Barajas; advised that

Barajas had been paid a “sum of money by CMPD [the Charlotte-

Mecklenburg Police Department] for his cooperation which led to the

arrest of [Martinez]”; and further advised that he was an alien not

legally in the United States. J.A. 164-A.1 Finally, the letter,

dated February 1, 2006, related that “the Government does not know

the exact amount of money that [the informant] was paid, but that

information will be turned over to you before trial.” Id.2

1
Citations to “J.A. ” refer to the Joint Appendix filed by
the parties in this appeal.
2
The prosecution’s February 1, 2006 disclosure letter to
defense counsel advised as follows:

The Government hereby gives notice of the following
information relating to the trial in the above case:

1. The informant is Emanuel Barajas[.]

4
 On either February 2 or 6, 2006, the defense raised with the

district court its contention concerning inadequate disclosure by

the prosecution — particularly as to Barajas — and requested a

trial continuance in order to locate and interview him. Although

the record is somewhat ambiguous, the court apparently denied the

continuance request and directed that the trial proceed as

scheduled. On February 6, 2006, the day before the trial began,

Martinez pleaded guilty to Counts One and Two. The trial then

commenced the following day on Count Three only.3

B.

1.

At trial, the Government called four witnesses — with

Barajas, its informant, being the primary prosecution witness.

According to Barajas, he first met Martinez through a co-worker

known as “El Gordo,” who told Barajas that he knew someone who

2. The informant was paid a sum of money by CMPD
for his cooperation which led to the arrest of
your client [Martinez]. At this time the
Government does not know the exact amount of
money that he was paid, but that information
will be turned over to you before trial.

3. The informant is an alien and not legally in
the United States.

J.A. 164-A.
3
By his guilty pleas on Counts One and Two, Martinez admitted
guilt on the first two counts, but denied, with respect to Count
Three (which carried a consecutive prison term of five years), that
the firearm possession had any relevance to the drug transaction.

5
wanted to start selling drugs. El Gordo arranged a meeting between

Martinez and Barajas, and they discussed drugs that Martinez might

deliver and sell. Martinez claimed that, for $20,000, he could get

four kilograms of crystal methamphetamine, or “ice,” and five

kilograms of cocaine. Martinez explained that he had to travel to

California to obtain the drugs, and that the cocaine would be from

Columbia and the methamphetamine from Mexico. Martinez also

advised Barajas that he was willing to sell a .45 handgun and a 9-

millimeter handgun. After this meeting, Barajas spoke to Officer

Jesus Rendon with the CMPD and informed him of the meeting, the

possibility of an undercover drug deal, and Martinez’s offer to

sell handguns.

Less than a week later, Martinez met Barajas at a bar in

Charlotte. During this meeting, Martinez agreed to travel to Los

Angeles to obtain drugs for Barajas and phone Barajas upon his

return. Barajas also reported this conversation to Officer Rendon.

Martinez ultimately obtained approximately 3.75 pounds of crystal

methamphetamine (but no cocaine), and, on August 1, 2005, called

Barajas to advise that he (Martinez) was back from California and

ready to complete the drug deal. The next day, Barajas, who was

with Officer Rendon, called Martinez and agreed to meet at his

apartment that morning. After Officer Rendon (who also testified

for the prosecution) checked Barajas’s vehicle to ensure that it

contained no firearms or weapons, the officer followed Barajas to

6
Martinez’s residence. Officer Rendon instructed Barajas to call as

soon as he saw the drugs.

Upon arriving at Martinez’s apartment, Barajas met Martinez

and they proceeded into the apartment. They immediately went into

a back bedroom, and Martinez locked the door behind them. Martinez

then removed some Tupperware containers wrapped in plastic from a

closet, cut the packaging with scissors, and opened the containers.

Barajas observed several pieces of crystal methamphetamine and,

pretending that he was calling an associate to obtain money to

purchase the methamphetamine, called the Charlotte police officers.

Barajas advised Martinez that he needed to pick up the money, and

Martinez decided to accompany him.

According to Barajas, as Martinez was leaving the apartment,

he removed a firearm from his waistband, “a black one, and he put

it on the entertainment center.” J.A. 223. When Barajas and

Martinez exited the apartment, Martinez was immediately arrested

and found to be unarmed. Following the arrest, officers searched

the apartment and seized a loaded Glock .45 handgun from the top of

the entertainment center near the front door. The officers also

seized 3.68 pounds of crystal methamphetamine in Tupperware

containers. The handgun was found twenty to twenty-five feet from

where the methamphetamine was seized.

Barajas admitted on direct examination that he was an illegal

alien from Mexico, and that he had worked as a paid informant for

7
the Charlotte police for approximately a year. Other than the drug

transaction with Martinez, Barajas testified that he had been

involved in three other drug deals for the CMPD. He further

testified that he had been paid a total of approximately $5000 for

his work as a police informant, $3000 of which was for the Martinez

transaction. Prior to his work with the Charlotte police, Barajas

knew nothing about drugs or drug dealing, and he testified that the

CMPD had trained him as their informant. Barajas also testified

that the officers promised to assist him in becoming a legal

resident of the United States in return for his informant work.

The prosecution also called as witness police officers Rendon

and Robson. Rendon, who supervised confidential informants in the

Narcotics Unit of the CMPD, testified that Barajas was a good

informant because he was “very honest,” he “learned fast,” and, to

Rendon’s knowledge, had never lied to the police. J.A. 251-52.

Robson, one of the officers who executed the search warrant for

Martinez’s residence, testified that, upon entering the apartment

immediately after the arrest, he observed a loaded Glock .45

handgun on an entertainment center near the front door. In the

back bedroom twenty to twenty-five feet from the front door, Robson

found a large quantity of methamphetamine in Tupperware

containers.4

4
The prosecution called Officer Rolondo Ortiz as a rebuttal
witness. His testimony related only to the identity of El Gordo.

8
 2.

The defense then called two witnesses, seeking to lay the

groundwork for a contention that the Glock .45 handgun had not been

possessed by Martinez in connection with a drug trafficking crime.

Martinez testified in his own defense and asserted that he had not

possessed a firearm during the drug transaction, that he had not

displayed any weapon to Barajas, and that he had never spoken to

Barajas about selling firearms. Although Martinez admitted owning

a firearm (the Glock), he claimed that it was purchased only for

protection of his family. He also acknowledged that he had pleaded

guilty two days earlier to the offenses charged in Counts One and

Two, thus admitting guilt to those drug and firearm offenses.5

C.

On February 8, 2006, at the close of the evidence, Martinez’s

defense lawyer referred the trial court to earlier proceedings in

the case, at the court’s pretrial docket call (which were

apparently off the record). Counsel requested an opportunity to

place into the record the court’s denial, at the docket call, of

his continuance request — a continuance that he sought in order to

locate and interview Barajas. The defense asserted that it was

5
The other defense witness was Marlin Garcia, a co-worker of
Martinez’s. Garcia testified that he was with Martinez when he
purchased the Glock .45 handgun in the spring of 2005. The day
Martinez bought it, he explained to Garcia that he was concerned
that someone would break into his home, and was buying the firearm
to protect himself.

9
error for the prosecution to make incomplete disclosure of

Barajas’s identity — as it had, on February 1, 2006, disclosed his

name only, with no further identifying information. Defense

counsel requested, in the alternative, that the court suppress

Barajas’s testimony. The court denied both requests, and the jury

returned a guilty verdict later that day.

On August 2, 2007, the court sentenced Martinez to 121 months

of imprisonment on Count One, a concurrent term of 120 months on

Count Two, and a consecutive term of 60 months on Count Three.

Judgment was entered on August 30, 2007, and Martinez has timely

appealed. We possess jurisdiction pursuant to 28 U.S.C. § 1291.

II.

We review a trial court’s decision regarding the prosecution’s

disclosure of evidence, including witness information, for abuse of

discretion. See United States v. Fletcher, 74 F.3d 49, 54 (4th

Cir. 1996) (explaining that we have “interpreted Rule 16 of the

Federal Rules of Criminal Procedure governing discovery and

inspection as placing the decision regarding pre-trial disclosure

of witness lists within the sound discretion of the trial court”).

Of course, an error of law, such as the failure to mandate

disclosure to the defense of evidence or information essential to

the conduct of a fair trial, is by definition an abuse of

discretion. See United States v. Singh, 518 F.3d 236, 251 (4th

10
Cir. 2008) (“By definition, a district court abuses its discretion

when it makes an error of law.”). When a new trial issue is

premised on a Brady claim that presents questions of law as well as

questions of fact, we review the court’s conclusions of law de novo

and any findings of fact for clear error. See United States v.

Bell, No. 06-4648, 2008 WL 2315886, at *1 (3d Cir. June 6, 2008).

If an appellant has timely objected, his appellate assertion of

error is preserved, and we apply the harmless error standard

provided by Rule 52(a) of the Federal Rules of Criminal Procedure.

See Fed. Rule Crim. Pro. 52(a) (providing that “[a]ny error . . .

that does not affect substantial rights must be disregarded”).

III.

A.

By this appeal, Martinez seeks a new trial on Count Three of

his indictment, contending that the district court erred in failing

to require the prosecution to make timely disclosure of contact

information and impeachment evidence concerning its testifying

informant. In that regard, it has long been settled that

“disclosure of [an] informant’s identity is required where the

informant is an actual participant [in the crime], particularly

where he helps set up the criminal occurrence.” McLawhorn v. State

of North Carolina, 484 F.2d 1, 5 (4th Cir. 1973) (relying on

Rovario v. United States, 353 U.S. 53, 64-65 (1957) (concluding

11
that when informant is sole participant in crime [other than

accused], it is reversible error for prosecution to withhold

identity of informant)). In McLawhorn, our Judge Boreman addressed

a due process contention in 1973 concerning the prosecution’s

failure to identify a confidential informant who was a participant

in the charged offenses. Importantly, his opinion clearly stated

the principle that “[o]nly by disclosing all material information,

especially informant’s true name and address . . . does the

prosecution discharge its duty under the due process clause.” 484

F.2d at 8 n.19 (relying on, inter alia, Rovario, 353 U.S. 53

(1957); and Brady v. Maryland, 373 U.S. 83 (1963)) (emphasis

added).6 Here, the Government maintains that the Rovario,

McLawhorn, and Brady precedents are distinguishable, and thus not

controlling, because Barajas actually testified at trial. It

maintains that, because Martinez’s lawyer had an opportunity to

fully cross-examine Barajas at trial, the mandate of those

decisions — that an accused should have access to “all material

6
In Rovario, the Supreme Court concluded that, when a
confidential informant is the only participant in a crime, other
than the accused, it is reversible error for the prosecution to
withhold the identity of the informant from the defendant. 353
U.S. at 64-65. In Brady, the Court held that “the suppression by
the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt
or to punishment, irrespective of the good faith or bad faith of
the prosecution.” 373 U.S. at 87 The Court has further held that
the Brady duty extends to both impeachment and exculpatory
evidence. See United States v. Bagley, 473 U.S. 667, 676 (1985).

12
information” concerning a police informant who participated in the

charged offense — is inapplicable.

In this situation, the prosecution disclosed to the defense,

just six days before trial, Barajas’s name only (with no further

identifying information). Martinez thus maintains that the

prosecution failed to satisfy its obligations to disclose the

informant’s “identity,” as well as impeaching and exculpatory

evidence concerning the informant. More specifically, Martinez

asserts that he had no way of knowing, solely on the basis of the

scant and untimely information supplied by the prosecutors, where

the informant was located or how he might be contacted.

In his discovery motions (filed more than two months before

trial), Martinez had requested the informant’s contact information,

including his address and phone number. He had also requested

disclosure of Brady materials, including information that might

impeach the prosecution’s witnesses. After the prosecution failed

to disclose such information in response to the discovery motions,

Martinez unsuccessfully sought a trial continuance at the court’s

docket call the day before the trial began, to allow an opportunity

to interview Barajas. As a result, when Martinez cross-examined

Barajas at trial, he had to do so without an earlier opportunity to

investigate the role of the prosecution’s key witness as a police

informant.

13
 As the prosecution argues, some courts have sought to

distinguish the applicability of the Rovario and Brady precedents,

and find that a lack of timely disclosure is not error if the

informant was called to testify at trial. Other courts have

reasoned that a harmless error analysis should be conducted, and

that, when such an informant testifies at trial and is available

for cross-examination, the prosecution is entitled to show that the

defendant was not prejudiced by the untimely disclosure. See

United States v. Perkins, 994 F.2d 1184, 1190-91 (6th Cir. 1993)

(concluding that Rovario is distinguishable, and error is

nonprejudicial, when confidential informant testifies at trial);

United States v. Foster, 815 F.2d 1200, 1203 (8th Cir. 1987)

(holding that court did not err in declining to permit disclosure

of informant’s identity when informant testified at trial); United

States v. Pennick, 500 F.2d 184, 186-87 (10th Cir. 1974) (finding

no prejudice from the failure to disclose the informant’s identity,

and explaining that “[t]he significant difference between Rovario

and the instant case is that in the former the informer did not

testify at trial, and in our case he did”).

Whether a disclosure error occurred in this case is plainly a

close question —— and the relevant record on the disclosure issue

is, at best, somewhat ambiguous. However, the controlling

precedents — including Rovario, Brady, and McLawhorn — are clear.

The prosecution was thus on notice of — and aware of — its

14
disclosure obligations: When a confidential informant has

participated in the charged offense, and the informant was the only

participant other than the accused, his identity and “all material

information, especially informant’s true name and address,” must be

timely disclosed. See McLawhorn, 484 F.2d at 8 n.19. In these

circumstances, however, rather than undertaking to resolve the

issue of whether the prosecution erroneously withheld discovery

that Martinez was entitled to receive, we will simply assume, for

purposes of this appeal, that such an error occurred. As a result,

we will assess the question of whether such error was harmless.

B.

Assuming that a disclosure error occurred, we must assess

whether it affected Martinez’s substantial rights and was

prejudicial to his right to a fair trial. See Fed. Rule Crim. Pro.

52(a) (providing that “[a]ny error . . . that does not affect

substantial rights must be disregarded”); see also McLawhorn, 484

F.2d at 7 (recognizing error and assessing whether failure to

disclose informant’s identity was prejudicial). Martinez contends,

of course, that not having received timely disclosure with respect

to the informant, he was unable to sufficiently prepare his defense

and effectively cross-examine Barajas. To support this

proposition, Martinez points to several facts that were not

disclosed in a timely manner: (1) that Barajas had assisted the

CMPD with three drug deals in addition to the drug transaction with

15
Martinez; (2) that Barajas had received approximately $5000 for

assisting the Charlotte police, including $3000 for his transaction

with Martinez; (3) that the police officers had advised Barajas

that they would assist him in becoming a legal resident of this

country in return for his help; and (4) that the CMPD had taught

Barajas about the drug trade so that he could work as a paid

informant. As Martinez argues, most of this evidence should have

been timely disclosed to the defense under the principles of

Rovario, McLawhorn, and Brady.

Although the harmlessness issue also presents us with a close

question, the record is insufficient to warrant an award of a new

trial on Count Three. Martinez has not shown how the prosecution’s

failure to timely disclose “all material information” either

altered or impaired his cross-examination of Barajas, or how such

failure otherwise adversely affected the outcome of his trial.

Moreover, when Martinez testified, he admitted that he had pleaded

guilty to the Count One drug offense and the Count Two firearms

offense, leaving the jury to resolve only a single factual issue —

whether the two offenses were sufficiently related to constitute

the crime of possession of a firearm in relation to a drug

trafficking offense, in violation of 18 U.S.C. § 924 (c)(1) (as

charged in Count Three).

In addition to Barajas’s testimony, the prosecution presented

the jury with witnesses who buttressed Barajas’s credibility.

16
Officer Rendon testified that Barajas was an honest and reliable

informant. Officer Robson, who executed the search warrant for

Martinez’s apartment, testified that he observed a Glock .45

handgun on the entertainment center by the front door immediately

after Martinez was arrested, corroborating Barajas’s testimony on

that point and providing independent evidence of the relationship

between the firearm and the drugs. Furthermore, a substantial

amount of impeachment evidence was presented to the jury by the

prosecutors during Barajas’s direct examination, rendering it more

difficult for Martinez to demonstrate that he was prejudiced by the

disclosure error. Thus, although the prosecution should have acted

in a more timely and comprehensive manner with respect to its

disclosure obligations, we are not, in these circumstances,

convinced that its failure to do so was prejudicial to the

substantial rights of Martinez. As a result, we must deny relief

and affirm Martinez’s conviction on Count Three.7

7
Martinez also asserts on appeal that he should be awarded a
new trial because the prosecution fatally erred in making a
prejudicial closing argument. Martinez failed to object to the
argument, however, and we review this contention for plain error
only. See United States v. Moore, 11 F.3d 475, 481 (4th Cir. 1993)
(concluding that when defense counsel failed to object to
prosecution’s closing argument, objection was forfeited and could
only be reviewed for plain error). The prosecution concedes that
it committed error in its closing argument, but argues that
Martinez was not prejudiced by any such error. After closely
examining the record, we agree with the prosecution on this point,
and we are satisfied that this contention is without merit.

17
 IV.

Pursuant to the foregoing, the judgment of the district court

is affirmed.

AFFIRMED

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