United States v. Henry L. Martin

189 F.3d 547, 52 Fed. R. Serv. 1747, 1999 U.S. App. LEXIS 20286, 1999 WL 667265
CourtCourt of Appeals for the Seventh Circuit
DecidedAugust 27, 1999
Docket98-4000
StatusPublished
Cited by33 cases

This text of 189 F.3d 547 (United States v. Henry L. Martin) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Henry L. Martin, 189 F.3d 547, 52 Fed. R. Serv. 1747, 1999 U.S. App. LEXIS 20286, 1999 WL 667265 (7th Cir. 1999).

Opinion

MANION, Circuit Judge.

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.

I.

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 ear after *549 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. §§ 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 McEl-wee’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 McEl-wee. 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?
*550 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.

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Bluebook (online)
189 F.3d 547, 52 Fed. R. Serv. 1747, 1999 U.S. App. LEXIS 20286, 1999 WL 667265, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-henry-l-martin-ca7-1999.