United States v. Martinez-Vives

United States Court of Appeals
For the First Circuit

No. 05-1761

UNITED STATES OF AMERICA,

Appellee,

v.

LUIS MARTÍNEZ-VIVES,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Torruella, Circuit Judge,
Stahl, Senior Circuit Judge,
Lipez, Circuit Judge.

Todd A. Bussert for appellant.
Jacabed Rodríguez-Coss, Assistant United States Attorney,
with whom Rosa Emilia Rodríguez-Vélez, United States Attorney,
Nelson Pérez-Sosa, Assistant United States Attorney, and Germán
A. Rieckehoff, Assistant United States Attorney, were on brief,
for appellee.

February 2, 2007
 STAHL, Senior Circuit Judge. Luis Martínez-Vives

("Martínez") appeals his conviction and sentence for transporting

illegal aliens, in violation of 8 U.S.C. § 1324. He argues that

the district judge's instructions to the jury deprived him of a

fair trial; that the judge's limitation of his counsel's questions

deprived him of his right to effective cross-examination of

witnesses; and that his sentence was unreasonable. We affirm.

I. Background

Early in the morning on November 27, 2004, Martínez,

along with Ismael Curet-Torres ("Curet") and Aristides Jovanny

Cruz-Alemán ("Cruz"), an undocumented alien, drove to Manatí Beach,

Puerto Rico, to pick up a group of aliens that had arrived on the

beach during the night. Curet and Cruz drove a rented truck to the

beach to pick up the aliens, while Martínez, driving Curet's Ford

Explorer, stayed at the entrance to the beach to watch for police.

After picking up the aliens, the two vehicles then drove back to

Curet's residence in the Ville Verde gated community in Bayamón,

arriving some time around 4:00 a.m.

The noise of the truck backing into Curet's garage awoke

several neighbors, one of whom saw individuals exiting the back of

the truck with the help of Martínez. Concerned that the house was

being robbed, the neighbor phoned a community leader, who in turn

phoned the police. The local police arrived around 6:00 a.m. to

observe the situation, and then contacted immigration officials.

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Federal officers arrived, and around 9:30 a.m. the officers entered

the Curet residence and discovered 23 undocumented aliens.1

Martínez had in the meantime left the Curet residence in

Curet's Explorer, along with some of the aliens, in order to

deliver them to their families. Returning to the Ville Verde gate

between 10:00 and 10:15 a.m., he was given admission to the gated

community, per the instructions of the federal officers. As he

proceeded toward the Curet residence, Cruz warned him that the

police were at the house. The record is unclear as to whether Cruz

had been in the Explorer all along and somehow noticed the police,

or whether he just got into the Explorer on Martínez's return to

Ville Verde in order to warn him. The police, having been notified

of Martínez's arrival by the gatekeepers and seeing the Explorer

suddenly turn around, gave chase and stopped it just outside the

main gate of the community. Cruz and Martínez were arrested and

taken back to Curet's residence. There, Martínez, in a meeting

with Immigration and Customs Enforcement ("ICE") agent Ricardo

Nazario-Rivera ("Nazario"), signed a Miranda waiver and admitted

the facts described herein. Later, at the local police station, he

signed a statement containing substantially the same information.

Still later he gave an additional statement to ICE agent Ricardo

Morales-Berríos ("Morales") that, with only minor differences, was

1
Including aliens who had already left the residence, Martínez
and the others transported more than 24 undocumented aliens that
day.

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consistent with his first statement. During his initial

interrogation at the Curet residence, Martínez received several

calls on his cellular phone. A police officer answered the calls,

which were from people trying to arrange for final payment so that

they would be allowed to pick up their friends and relatives.

Martínez was indicted on two counts of transporting and

harboring illegal aliens, in violation of 8 U.S.C. § 1324. The

jury returned a guilty verdict on both counts, and Martínez was

sentenced to 33 months' imprisonment and three years' supervised

release. He now appeals his conviction and sentence.

II. Discussion

A. Jury Instructions

Martínez argues that the district judge's instructions to

the entire venire panel deprived him of his right to an impartial

jury, deprived him of the presumption of innocence, and

impermissibly shifted the burden of proof from the government onto

him.

The instructions at issue were as follows:

Members of the jury, the case we are going to
start in a minute is a case against Luis
Martínez Vives.

The indictment that he faces is a two-count
indictment where the following allegations are
made. The indictment mentions the date
November 27, 2004, and also mentions Mr.
Martínez along with two other persons,
Aristides Jovanny Cruz Alemán and Ismael Curet
Torres.

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 The three of them are charged -- or were
charged in the indictment. And the only one
who is before the Court at this time is Mr.
Martínez. The allegations stem from the
following facts:

That on this date, November 27, 2004, the
three of them, Mr. Cruz Alemán, Mr. Curet
Torres, and Mr. Vives [sic], went in a rental
van to a place in Manatí. I gather from what
I saw here in the papers that it was a beach
somewhere. And there they picked up 24
illegal aliens who had come to Puerto Rico
through the Manatí area. These individuals
that were picked up were taken to a residence
in Bayamón. And there, they were basically
hidden.

The idea would be, according to these papers,
that the three defendants would, through a
payment of some money per person, actually
help them to make their way into the free
community, if you will, in the area of Puerto
Rico; that they would be placed or given to
their family members or whatever for money.
That is basically the allegations. It is two
counts.

Of course, the defendant has denied the facts,
and that is the reason why we are here to try
the case. The indictment is not evidence of
guilt or of anything else. It is simply a
document that contains the charges against the
defendant.

Tr. 1/11/05 at 3-5 (emphasis added).

Martínez objects principally to the use of the word

"facts" and to the judge's reference to the particular location of

the pick-up, a detail that was not in the indictment.2 He argues

2
It is unclear which "papers" the judge was referring to, but
we note that the affidavit of Morales stated that the pick-up was
in the "Manatí beach area."

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that by using this language the judge put his imprimatur on the

government's version of the events and thus placed the burden on

the defense to overcome the presumption that the allegations were

actually "facts."

Because Martínez did not object to the instructions

below, our review is only for plain error. See United States v.

Landrau-Lopez, 444 F.3d 19, 22 (1st Cir. 2006); United States v.

Bailey, 405 F.3d 102, 110 (1st Cir. 2005). Therefore, Martínez

"must demonstrate: '(1) that an error occurred (2) which was clear

or obvious and which not only (3) affected the defendant's

substantial rights, but also (4) seriously impaired the fairness,

integrity, or public reputation of judicial proceedings.'" United

States v. Moran, 393 F.3d 1, 13 (1st Cir. 2004) (quoting United

States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)); see United

States v. Olano, 507 U.S. 725, 732-36 (1993). "[T]he plain error

hurdle, high in all events, nowhere looms larger than in the

context of alleged instructional errors." United States v.

Paniagua-Ramos, 251 F.3d 242, 246 (1st Cir. 2001) (citing United

States v. McGill, 952 F.2d 16, 17 (1st Cir. 1991)).

Though we agree that the judge's statement to the venire

panel was "infelicitously phrased," Landrau-Lopez, 444 F.3d at 22,

we need not determine here whether the use of the word "facts" or

references to collateral facts not in the indictment was error,

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since we find that in any event Martínez was not prejudiced.3

Viewing the instructions as a whole, as we are bound to do, see

United States v. Alzanki, 54 F.3d 994, 1001 (1st Cir. 1995), we

find that the they were not prejudicial. Though the judge used the

word "facts," he also used the word "allegations" several times,

and stated clearly that the indictment was not evidence of guilt.

"'Moreover, in reviewing jury instructions, our task is

also to view the charge itself as part of the whole trial.'"

United States v. Serino, 835 F.2d 924, 930 (1st Cir. 1987) (quoting

United States v. Park, 421 U.S. 658, 674 (1975)); see United States

v. Tutiven, 40 F.3d 1, 8 (1st Cir. 1994). Following the judge's

initial instructions to the venire, the jury was empaneled, and the

judge then gave the jury further instructions. He told the jury

that they were "the judges of the facts"; that they were "the

judges of the credibility of the witnesses"; that they "decide what

to believe and what not to believe"; that "the defendant is

presumed innocent" and "starts with a clean slate"; that the

indictment is "not evidence" and "not proof of guilt"; and that

"the burden of proof is upon the government." Tr. 1/11/05 at 21-

28. Martínez points to no other points in the trial where the

judge may have erred in discussing the evidence or the burden of

3
However, in order to forestall appeals such as this one, we
note that judges should be scrupulous in avoiding any possibility
of inference that allegations in the indictment be treated as
facts.

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proof. Thus, we cannot say that the judge's initial instruction to

the venire panel "affected the defendant's substantial rights" or

"seriously impaired the fairness, integrity, or public reputation

of judicial proceedings." Moran, 393 F.3d at 13.

B. Limitation of Cross-Examination

Martínez next challenges the trial judge's limitation of

his cross-examination of two witnesses, arguing that the barred

questions would have gone to Martínez's theory of police

credibility, bias, and excessive zeal to make arrests. Martínez

cites to three particular incidents.

In the first incident, counsel for Martínez was cross-

examining Ernesto Rosario-Cintrón ("Rosario"), the officer who

initially arrested Martínez and Cruz after they took off in Curet's

Explorer. Rosario testified that his initial cause to arrest

Martínez after stopping him was that he was driving with an

undocumented alien, namely Cruz, which he discovered after asking

them for their documents. Counsel then asked, "The truth is that

once this person speaks for the first time and you think he is

Dominican, you didn't read him any warnings about rights or

anything like that, did you?" The judge then interjects, "Counsel,

you have no standing to ask that question, and I will not allow you

to ask that question. You have no standing to ask that question."

Second, counsel for Martínez continued, and a few

questions later, asked Rosario, "Did you have a judicial order to

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open and search [the truck the aliens were in]?" The judge again

interrupted, "You have no right to ask that question. Your client

has no standing to ask that question."

Third, counsel for Martínez was cross-examining ICE agent

Nazario and asked, "Did you have a judicial order to go into the

house?" The government objected, and the objection was sustained,

though not before the witness answered, "No."

Martínez argues that each of these inquiries were central

to his defense, since they addressed the motives of the law

enforcement officials and thus would impact on their credibility.

The Sixth Amendment protects a defendant's right to

effective cross-examination of key adverse witnesses. United

States v. Callipari, 368 F.3d 22, 36 (1st Cir. 2004) (judgment

vacated on other grounds). "Trial judges, however, 'retain wide

latitude insofar as the Confrontation Clause is concerned to impose

reasonable limits on such cross-examination based on concerns

about, among other things, harassment, prejudice, confusion of the

issues, the witness' safety, or interrogation that is repetitive or

only marginally relevant.'" Id. (quoting Delaware v. Van Arsdall,

475 U.S. 673, 679 (1986)). "'The Confrontation Clause guarantees

an opportunity for effective cross-examination, not

cross-examination that is effective in whatever way, and to

whatever extent, the defense might wish.'" Id. (quoting Delaware

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v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam) (emphasis in

original)).

On a challenge to a district court's limitation of cross-

examination, we first perform a de novo review to determine whether

a defendant "was afforded a reasonable opportunity to impeach

adverse witnesses" consistent with the Confrontation Clause. Id.

(internal quotation marks and citation omitted). Provided that

threshold is reached, we then review the particular limitations

only for abuse of discretion. See id.; United States v. Gonzalez-

Vazquez, 219 F.3d 37, 45 (1st Cir. 2000). "The trial court's

latitude in shaping such restrictions is 'wide.'" United States v.

Vega Molina, 407 F.3d 511, 523 (1st Cir. 2005) (quoting Van

Arsdell, 475 U.S. at 679).

"[R]estrictions on cross-examination regarding bias are

erroneous only if they are 'manifestly unreasonable or overbroad.'"

Callipari, 368 F.3d at 36 (quoting United States v. Gomes, 177 F.3d

76, 81-82 (1st Cir. 1999)). "To establish that the district court

has abused its discretion, the defendant must show that the

limitations imposed were clearly prejudicial." United States v.

Williams, 985 F.2d 634, 639 (1st Cir. 1993); see United States v.

Anderson, 139 F.3d 291, 302 (1st Cir. 1998). "It follows

logically, therefore, that should an error be revealed, we may

affirm the conviction if we are confident that it was harmless

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beyond a reasonable doubt." Anderson, 139 F.3d at 302 (citing Van

Arsdall, 475 U.S. at 681); see Callipari, 368 F.3d at 36.

After reviewing the record, we hold that Martínez was

given a reasonable opportunity to impeach the witnesses, and that

the judge did not abuse his discretion in limiting the cross-

examination. Martínez argues that the questions went to his theory

of police bias and credibility. However, "[t]he Confrontation

Clause does not give a defendant the right to cross-examine on

'every conceivable theory of bias.'" Callipari, 368 F.3d at 38-39

(quoting Bui v. DiPaolo, 170 F.3d 232, 242 (1st Cir. 1999)). "The

court may limit cross-examination if the defendant is unable to lay

a proper evidentiary foundation. Where the theory of bias is

inherently speculative, the court may prohibit cross-examiners from

mounting fishing expeditions." Id. at 39 (internal quotation marks

and citations omitted). "Without such limits, unchecked

cross-examination on a theory of bias may unfairly prejudice the

opposing party's case and only bring forth 'marginally relevant'

evidence." Id. (quoting Van Arsdall, 475 U.S. at 679).

If indeed Martínez had been intending to show bias on the

part of the law enforcement officers, he had not up to that point

made any proffer of evidence to serve as a foundation for that

theory. But even assuming that pursuing that theory was proper,

there was a high likelihood that the confusion and prejudice that

these particular questions would have created in a jury outweighed

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any probative value, given that there was no claim that law

enforcement had actually violated any procedures, either in the

initial arrest of Martínez or in the search of the house and truck.

See Fed. R. Evid. 403.

The court gave Martínez ample opportunity to cross-

examine the two witnesses on issues of bias and excessive zeal. In

the case of Rosario, counsel for Martínez asked several questions

directed at whether Rosario might be biased against Dominicans. It

was only when the question went directly to whether Cruz received

a Miranda warning that the judge intervened. Similarly, counsel

asked Rosario and Nazario several questions attempting to establish

whether they had probable cause for entering the truck and house.

Again, it was only when the questions went to the issue of whether

they had a judicial order to do so that the questioning was

stopped. In both cases, the questions went beyond the issues of

bias and credibility, and sought instead to impeach the witnesses

based on their failure to do specific legal acts, when it was never

established that those acts were actually required.4

Therefore, Martínez was given a sufficient opportunity to

cross-examine the adverse witnesses. The judge's restrictions were

4
The government argues that it was not necessary to provide
any Miranda warnings to Cruz prior to his admission of being an
undocumented alien, because he had not yet been taken into custody.
Similarly, it argues that warrants were not necessary to search the
truck or house because the officers had sufficient probable cause.
Martínez does not claim here that the officers actually behaved
improperly, an issue on which we take no view.

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not "manifestly unreasonable or overbroad," Gomes, 177 F.3d at

81-82, and did not prejudice Martínez.

C. Sentencing

Martínez challenges his 33-month sentence as

unreasonable. Following United States v. Booker, 543 U.S. 220, 261

(2005), we review a sentence for reasonableness whether it falls

inside the Sentencing Guidelines range, as this one does, or

outside. United States v. Jimenez-Beltre, 440 F.3d 514, 517 (1st

Cir. 2006) (en banc); United States v. Alli, 444 F.3d 34, 40 (1st

Cir. 2006). The sentencing court is bound to consider the

sentencing factors set out in 18 U.S.C. § 3553(a),5 United States

v. Robinson, 433 F.3d 31, 35 (1st Cir. 2005), and to explain its

reasons for choosing the sentence it does, Jimenez-Beltre, 440 F.3d

at 519.

We note at the outset that any claim that the judge erred

in calculating the applicable Sentencing Guidelines range of 27 to

33 months based on the presentence report ("PSR") fails. Because

5
These factors are: (1) the nature and circumstances of the
offense and the history and characteristics of the defendant; (2)
the need for the sentence to reflect the seriousness of the
offense, to promote respect for the law, and to provide just
punishment; to afford adequate deterrence; to protect the public;
and to provide the defendant with needed educational or vocational
training or medical care; (3) the kinds of sentences available; (4)
the kinds of sentence and the sentencing range established by the
Guidelines; (5) any pertinent policy statement; (6) the need to
avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.
18 U.S.C. § 3553(a).

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Martínez did not object below to the Guidelines analysis, we review

for plain error only. United States v. Rivera, 448 F.3d 82, 86 n.1

(1st Cir. 2006); see United States v. Robinson, 433 F.3d 31, 35-36

(1st Cir. 2005) (concluding that Booker "did not disturb the

standard of review that we apply to a district court's

interpretation of the Guidelines"). In addition, because Martínez

did not object to the PSR, and did not ask at sentencing for any of

the reductions that he now claims the court should have provided,

he waived these arguments. See United States v. Escobar-Figueroa,

454 F.3d 40, 49 (1st Cir. 2006); United States v. Morales-Madera,

352 F.3d 1, 14 (1st Cir. 2003).

Even assuming, arguendo, that he had preserved the

arguments, the judge committed no error in his analysis, plain or

otherwise. First, Martínez challenges the lack of an offense level

reduction for acceptance of responsibility under USSG § 3E1.1. His

theory is that, because he gave incriminating statements that

formed the basis of his prosecution, this in some manner entitles

him to the credit. It is not necessary for us to discuss this

rather attenuated claim, because "under most circumstances, a

defendant who goes to trial is not entitled to acceptance of

responsibility credit." United States v. Hall, 434 F.3d 42, 62

(1st Cir. 2006).6

6
Martínez points to the commentary under USSG § 3E1.1 to
support the argument that going to trial does not automatically
foreclose this reduction. However, the commentary states that such

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 Second, Martínez makes an unsupported argument that he

should have received a three-level reduction under USSG § 2L1.1 for

committing a crime "other than for profit." However, money clearly

changed hands in this crime, and Martínez makes no argument that it

did not. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.

1990) ("[I]ssues adverted to in a perfunctory manner, unaccompanied

by some effort at developed argumentation, are deemed waived.").

Third, and thinnest of all, he makes the argument that he

should not have received an offense level increase under USSG §

2L1.1(b)(2) for having been involved in transporting more than 24

aliens, simply because he was not a ringleader and had not been

involved in deciding how many aliens would be brought into the

country. Martínez does not make the argument, nor can he, that

USSG § 2L1.1 takes such a factor into account. Cf. USSG § 3B1.1(a)

(setting forth an additional offense level increase, not applied

here, for being an "organizer or leader of a criminal activity").

This argument is without merit.

Martínez next argues that it was unreasonable for him to

receive the high end of the guidelines range when Cruz, who

Martínez argues was more culpable, received the low end of his

applicable range from the same judge. Martínez points to our

decision in United States v. Saez for the proposition that "if the

cases are "rare," such as when a defendant wishes to try issues
"not related[d] to factual guilt." USSG §3E1.1, comment. (n.2).

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same judge sentences two identically situated defendants to

substantially different terms, some explanation may well be

required; uniformity aside, the basic requirement of rationality

remains." 444 F.3d 15, 19 (1st Cir. 2006). First, it should be

noted that the quoted statement is dictum in that case, where the

sentencing of each defendant was done by different judges. But

even so, Cruz and Martínez are not "identically situated," given

that Cruz pled guilty and thus did not put the government to the

risks of a trial. Whatever the logic or fairness of imposing

greater sentences on those who exercise their right to trial, it is

not error for a judge to do so. See Hall, 434 F.3d at 62.

In sentencing Martínez to the high end of the range, the

judge considered the § 3553(a) factors, and stated:

You are basically taking advantage of people
who are in a position of disadvantage and,
although you cannot excuse the fact that they
decided to come illegally, the truth of the
matter is that compounding that with the
harboring and the keeping of the aliens until
additional monies are paid is something that
is totally unacceptable.

Therefore, I will impose a sentence on the
higher end of the guidelines, which is 33
months.

He thus met his obligations under Jimenez-Beltre. The sentence was

reasonable.

The conviction and sentence are affirmed.

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