United States v. Carl Douglas Martin
489 F.2d 674
9th Cir.
1973
Check Treatment

*2 CHOY, ALDRICH,* Before ELY and Judges. Circuit Judge: CHOY, Circuit by jury ille- Martin was convicted gally possessing heroin with intent of 21 distribute violation U.S.C. § 841(a)(1) (1970). We affirm. police, after Martin was arrested conducting motel a surveillance of his up room, pull mo- observed car tel, room the driver enter Martin’s carrying sack, and, paper short- a brown * Circuit, Bailey Judge Aldrich, for the First sit- 'Circuit Honorable Senior ting designation. ly after, ap- coverup, it, both leave with Martin then and the are reasons

parently carrying paper bag. guilt. acknowledgement A an The state- quantity parole, the car revealed a of ment that he was “hot” and on heroin under the front seat and more while not itself a declaration the cover- bag up paper scheme, why heroin concealed in a brown indicates Martin was ask- *3 ing underneath the back seat. The of driver Salazar to take the blame and is car, Salazar, part parcel the Albertico thus was eventual- of the incriminat- ly along ing appellant. indicted with statement. Charges against Salazar were later argues Martin that Salazar’s tes dropped, however, in return for his tes- timony point hearsay on this is since the timony testimony which indi- trial — alleged admission was related to Salazar cated a narcotics transaction had taken prisoner a fellow who acted as an in place between Martin A and Salazar. terpreter. Viewing evidence, the as we occupant car, young third a Mexi- light must, in a most favorable to the alien, can was released after it was de- government, see v. Glasser United termined he that was not in the involved 60, States, 80, 457, 62 U.S. S.Ct. Upon boy transaction. his release the (1942), appears L.Ed. 680 it that Sala apparently returned to Mexico. understanding capable zar was of gather enough English purport to of the

Attempted Coverup hearsay Martin’s statement. not because another inmate also translated Salazar, through At trial in an it. terpreter, appellant related that had told him that he should “take the blame on Passenger Release of charge (appellant) this because he trial, Prior Martin moved hot, parole”. Appellant and he was on requiring goverment an order the to dis- argues inferentially that this is evidence occupant the close name of the third of past of his crimes which is inadmissible car, boy. the the Mexican A customs part government’s as of the in case agent, Miller, only person James the to normally pros chief. It is true that the testify hearing motion, on this may initially ecution not attack a de that said he was unable to recall or dis- Wigmore, fendant’s character. See 1 boy’s this, cover the name. Based on (3d 1940). However, Evidence ed. § court denied the motion. Martin con- reputation evidence, including evidence government tends that the failure of the past crimes, admissible, of is as an ex to at least record the witness’ name a ception rule, to this where “the evidence process. of due denial probative has force relevant to intent motive, design, knowledge, identity, or it be a of While denial Rhay, habits. . .” . Smith v. government process due for the to fail gen- See important identity to record the of an erally Wigmore, Evidence §§ no other witness where there are means (3d example, ed. For in Hass v. identity, person’s available to learn that States, United (9th Cir.), 31 F.2d 13 Mendez-Rodriguez, United States cf.. cert, denied, 279 U.S. 49 S.Ct. not 450 F.2d 1 this is (1929), 73 L.Ed. 1003 a witness testified pre such a At close of the case. defendant, charged who was suggested judge hearing, trial possession with opium, attempted of had attempt Martin’s counsel to learn the to shortly assault him before the trial. boy’s identity from or his attor Salazar testimony The was held admissible “be- ney. trial, At both and a local Salazar tendency cause it had some to connect police missing officer testified as with the commission of the passenger’s name. Martin’s counsel ” offense. . . . Hass v. United bring boy time to to tes States, Similarly, 31 F.2d at 15. here tify, having presumably learned appellant’s attempt- having as to boy’s identity statement then discover- help. tamed which have been would be no statements ed his gov- disapproved light this, in circuit.1 Yet in both be said the this cannot due which such were cases in statements failure was a denial ernment’s criticized, process. this court found their inclu- sion error under the reversible Assistance Counsel circumstances because instructions conveyed proper as a whole a notion of next he was claims that Martin guilt. standard See United effective assistance counsel. denied Clay, party claim, must To establish such 1973); Cummings, conduct of demonstrate that counsel’s lacking professional his so case same is true of instructions here. the trial to a farce or as reduce skill Therefore, counsel’s failure ob- mockery See, g., justice. e. *4 ject does not the of in- demonstrate sort Valenzuela-Mendoza, F.2d 452 States v. necessary competency for reversal. 1971). (9th Appellant 773, Cir. 774 alleged points mis instances of to three Third, points Martin to the prove judgment which, said, it is trial special attorney failure of offer to a his diligence lack in this counsel’s total of cautionary reliability instruction on the case. However, accomplice, Salazar. credibility the issue of was Salazar’s complains First, of Martin his pursued ways; in of a number counsel sup of a motion to counsel’s withdrawal credibility attacked his on exami cross press in the the heroin seized search nation; testimony the in of a fellow This, however, automobile. Salazar’s mate, Martin, a called as witness for constituting short of ineffective falls far tended to version of undercut Salazar’s it was a reason assistance counsel: events; argument and in final counsel that, in the of the fact decision face able strenuously argued accomplice’s that the admitted, there as counsel was almost suspect. appel testimony was Since certainly probable cause to the attorney actively pursued the reli lant’s a warrant. vehicle without ability issue, say failure cannot the we repre cautionary to offer the instruction Second, Martin asserts that oth with sents^—even in combination the failing object in was remiss to counsel judgments er claimed mis malfea instruc to of the trial court’s —such certain regarding denied effective sance that was the criminal standard tions proof. Compare con- The instructions court’s Bru of counsel.3 assistance jury: tially See, g., 1. the e. The trial court instructed uncorroborated. Whenever, Davis, 1105, of all after careful consideration States v. 439 F.2d 1106-1107 (9th evidence, your are in that state minds Cir. is indicat- a conclusion of innocence where 3. was error for the trial to Nor court guilt, equally conclusion of with give cautionary sponte. instruction s-ua as whether is a reasonable doubt to there judge’s plain failure must be error trial balanced, conclusion is so the evidence in absence this court to reverse adopted. must be of innocence by 52(b) ; an counsel. F.R.Crim.P. offer in United was criticized This instruction 219, Marsh, 451 United States v. F.2d (9th 1211, Clay, Cir. 476 F.2d (9th 1971) (dicta). error will be Plain only days 1973), before ten a case decided strong only there is a need for found where judge in- in case. Later this example, where the ac- instruction: jurors “If the accused be that: structed entirely complice’s testimony almost un- is proved guilty, say proved guilty, so. If not is, well, and it as both critical corroborated disapproved say in so.” This statement suspect. Griffin, and United States v. See 274, Cummings, 468 F.2d 823, 828-829 testimony supported by Here Salazar’s given (1) separate tips 2. an be when re- were Such instruction must other evidence: quested by counsel, concerning where defense least in Mar- received the room which accomplice (2) sack, staying; paper an is substan- same tin Dickson, true, especially baker v. when nize that this is cert, appears denied, an ac- there the likelihood that 372 U.S. complice presenting testimony favorable S.Ct. L.Ed.2d 143 (1963) (total likely present prosecution some failure to critical is to obtain exchange counsel). in is defense amounts to benefits therefor. denial of that counsel made no true defense Stipulation given, Facts request that the instruction be Martin, attacking in his conviction Finally, government that, collaterally, may be able to establish attorney agreed stipulate Martin’s to as attorney’s der- reason his defense to the substance in found and as car respect, along in with other eliction that custody. to Appellant its chain of circumstances, that he not receive argues that the record must affirmative to which effective assistance of counsel ly reveal, not, person as it does that he Certainly he it is incon- was entitled. ally right waived his constitutional there, any “stra- ceivable valid by consenting confront witnesses tegic” justified reason which have stipulation. This not an where is area attorney’s the defense failure to permitted counsel his waive importance to his an instruction of such rights. See, g., client’s e. Wilson alone, If I act client this case. could cert, Gray, Cir.), have, I hold the court would should denied, U.S. 86 S.Ct. 15 L. *5 instruction, acting sponte, given sua (1965). Ed.2d 234 We consider and that its failure do so constitutes degree, matter one perhaps based plain This, apparently, reversible error. upon importance of the rule Tenth is the of the Circuit. See overcoming and the likelihood if Owens, 460 F.2d United States v. presented in court. have well (10th 1972); see Cir. also William- advantageous been tactics not (5th States, son v. United F.2d dispute indisputable. any case House, 1964); Cir. United States cf. agreement open was recited in court 1973). (1st And see F.2d Cir. present. while the If he carefully opinion of researched had stipulation, reservations about Judge Coffin in McMillen v. United he could have them made known at (1st States, 386 F.2d Cir. time. Fitzharris, See Poole v. This conten totally tion is without merit. court, however, that, Our held ab- has counsel, sent of defense Affirmed. give cautionary court’s failure to in- plain error “the struction is unless ELY, Judge (concurring): Circuit sufficiently need for the instruction is ” I concur in the result. At same clear. . . . time, I note mysti- that I am Marsh, somewhat at 221 fied over the trial court’s failure to in- Applying, quali- must, as I jury struct the bring effect rule, myself that the tes- fied I cannot timony accomplice of an judgment should be conclusion that here chal- jurists recog- viewed with All lenged caution. should be reversed. type strongly of container plained; (5) in which some her- Martin’s alibi was found, oin was this, was observed first in Sala- controverted. Because of see United being Busby, zar’s hands and then carried Mar- F.2d ; (3) registered 1973), tin Martin was in the motel and the fact counsel the issue raised (4) name; credibility trial, under an assumed the fact he see United States v. stranger barely Ketola, left car with a able to English largely plain understand went unex- was no error. there