United States v. Martinez

88 F.4th 1310

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 20, 2023
• Docket: 22-1167
• Status: Published

Opinion

Appellate Case: 22-1167 Document: 010110971762 Date Filed: 12/20/2023 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS December 20, 2023

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 22-1167

DOMINGO MARTINEZ, JR.,

Defendant - Appellant. _________________________________

Appeal from the United States District Court for the District of Colorado (D.C. No. 1:19-CR-00277-DDD-1) _________________________________

Ryan A. Ray of Norman Wohlgemuth, LLP, Tulsa, Oklahoma, for Defendant-Appellant.

Cyrus Y. Chung, Assistant U.S. Attorney, (and Cole Finegan, U.S. Attorney, on the brief), Denver, Colorado, for Plaintiff-Appellee. _________________________________

Before EID, SEYMOUR, and KELLY, Circuit Judges. _________________________________

KELLY, Circuit Judge. _________________________________

Defendant-Appellant Domingo Martinez, Jr. was convicted of possession with

intent to distribute and distribution of 50 grams or more of methamphetamine, 21

U.S.C. § 841(a)(1), (b)(1)(A)(viii); 1 R. 12; 6 R. 4–5, and sentenced to 144 months’

imprisonment and five years’ supervised release, 2 R. 64; 4 R. 17. On appeal, he Appellate Case: 22-1167 Document: 010110971762 Date Filed: 12/20/2023 Page: 2

challenges (1) the admission of a narcotics detective’s testimony about Santa Muerte

shrines (he also claims the testimony violated his First Amendment rights), and (2)

the district court’s instructing the jury to disregard a robocall inadvertently played

during trial, rather than declaring a mistrial. We have jurisdiction under 28 U.S.C.

§ 1291 and 18 U.S.C. § 3742(a) and we affirm.

Background

A confidential informant visited Mr. Martinez’s autobody shop to consummate

a drug transaction. Law enforcement searched the informant before the transaction

occurred. 7 R. 36–37. Initially, Mr. Martinez was away when the informant arrived

and the informant left. Id. at 42–44. When the informant returned, Mr. Martinez was

at the shop and told the informant the “product” was not ready yet and he should

return later. Id. at 50. Upon the informant’s third visit, Mr. Martinez sold him 443

grams of methamphetamine. Id. at 51–58. Following the purchase, agents executed

a search warrant at the shop, finding several digital scales, baggies, firearms,

ammunition, and a shrine to Santa Muerte (known as the patron saint of drug

traffickers). 2 R. 9–11.

Agents arrested Mr. Martinez and charged him. Id. at 6, 8. At trial, the

government introduced the expert testimony of Detective Brian Jeffers, a law-

enforcement officer with 22 years’ experience and expertise in drug trafficking. 7 R.

234, 236, 243–44. Detective Jeffers testified that only someone involved in drug

trafficking could access the quantity of drugs sold by Mr. Martinez. Id. at 247. He

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also testified that drug traffickers typically carry the type of scales found at the shop,

id. at 253–54, and the type and number of bags found at the shop, id. at 254–55.

Based on his investigative experience, the officer further testified that Santa Muerte

is a saint that drug traffickers pray to for protection and that he would expect

someone in possession of a shrine to be associated with drug trafficking. Id. at 260–

61. When asked whether he had “ever seen a Santa Muerte shrine at someone’s

house who wasn’t associated with drug trafficking[,]” Detective Jeffers responded,

“No, sir.” Id. at 261. Mr. Martinez did not object.

Mr. Martinez raised an entrapment defense, testifying that the informant

“continuously” visited his autobody shop — at least ten times. Aplt. Br. at 1; 7 R.

138, 144. The informant gave contrary testimony that he had only visited Mr.

Martinez once before the transaction occurred. 7 R. 83, 98. Mr. Martinez stated that,

while at his shop, the informant twice displayed a gun and portrayed himself as a

cartel member. Id. at 145, 151. According to Mr. Martinez, the informant made him

fear for the safety of his wife and children. Id. at 151. Wanting the informant gone,

Mr. Martinez testified that he sold the methamphetamine to get him out of his shop.

Id.

During Mr. Martinez’s testimony, a spontaneous “robocall” announcement

played over the courtroom speakers warning that criminals were seeking to defund

the police and soliciting public support for police against the efforts of criminals.

Aplt. Br. at 12. The judge had no idea of the source or how it managed to play over

the speakers, but he immediately told the jury to disregard it. 7 R. 141. The court

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took a recess to solve the issue. Id. at 142. When the jury returned, the court once

again instructed it to disregard the interruption. Id. Mr. Martinez never objected to

the court’s treatment of the disruption. Ultimately, the jury convicted Mr. Martinez

despite his entrapment defense. 2 R. 8; 6 R. 4–5.

Discussion

Because Mr. Martinez failed to object to the admission of the Santa Muerte

testimony or to the court’s treatment of the robocall announcement, we review for

plain error. 1 See United States v. Jimenez, 61 F.4th 1281, 1285 (10th Cir. 2023).

“Plain error occurs when there is (1) error, (2) that is plain, which (3) affects

substantial rights, and which (4) seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” United States v. Gonzalez-Huerta, 403 F.3d 727,

732 (10th Cir. 2005) (en banc) (citation omitted). “An error is plain if it is clear or

obvious under current, well-settled law[,]” and generally “the Supreme Court or this

court must have addressed the issue.” United States v. Wells, 38 F.4th 1246, 1256

(10th Cir. 2022) (citation omitted). To satisfy the third factor, usually “the error

must have affected the outcome of the district court proceedings.” Gonzalez-Huerta,

403 F.3d at 732 (citation omitted). To satisfy the fourth factor, the error must be

“‘particularly egregious’ and our failure to notice the error would result in a

1 The parties agree on the plain-error standard of review. Aplt. Br. at 16–17, 31; Aplee. Br. at 5, 21. 4 Appellate Case: 22-1167 Document: 010110971762 Date Filed: 12/20/2023 Page: 5

‘miscarriage of justice.’” Id. at 736 (citation omitted).

A. Admission of testimony regarding connection between Santa Muerte shrine and drug trafficking

1. Plain error

Mr. Martinez argues that the admission of testimony regarding the Santa

Muerte shrine’s connection to drug traffickers was plain error because it conflicts

with our decision in United States v. Medina-Copete, 757 F.3d 1092 (10th Cir. 2014).

Aplt. Br. at 17–21. There, we held that an expert who testified about Santa Muerte

worship was “improperly vetted under Fed. R. Evid. 702[.]” Medina-Copete, 757

F.3d at 1095, 1105. This case is readily distinguishable from Medina-Copete, and we

find no error, plain or otherwise, in the admission of this testimony.

Law enforcement officers can testify as experts based on their experience and

expertise. See, e.g., United States v. Vann, 776 F.3d 746, 759 (10th Cir. 2015);

United States v. Kamahele, 748 F.3d 984, 997–99 (10th Cir. 2014); United States v.

Garcia, 635 F.3d 472, 477 (10th Cir. 2011); United States v. Roach, 582 F.3d 1192,

1206 (10th Cir. 2009); United States v. Quintana, 70 F.3d 1167, 1170–71 (10th Cir.

1995). This testimony is helpful to the jury “[b]ecause the average juror is often

innocent of the ways of the criminal underworld,” and it “provide[s] jurors a context

for the actions of defendants.” Garcia, 635 F.3d at 477. Under Federal Rule of

Evidence 702 and the Daubert test, the reliability of expert testimony from law

enforcement officers stems from specialized knowledge gained through experience

and training. See United States v. Garza, 566 F.3d 1194, 1199 (10th Cir. 2009)

5 Appellate Case: 22-1167 Document: 010110971762 Date Filed: 12/20/2023 Page: 6

(citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993)).

As noted in Vann, “Medina-Copete is the exception not the rule[.]” 776 F.3d

at 759. In Medina-Copete, two defendants were pulled over; one appeared to be

praying from a sheet, which later revealed a prayer to Santa Muerte. 757 F.3d at

1096. The witness who subsequently testified about Santa Muerte was qualified as

an expert based on 25 years of law enforcement experience as well as extensive

personal research into Mexican drug traffickers. Id. at 1098. He testified about the

religious significance and sainthood status of Santa Muerte, including that “very

often criminal drug traffickers and other criminals pray to [Santa Muerte] for

protection from law enforcement[,]” and that praying to Santa Muerte indicates

criminal activity. Id. at 1099–100.

The court in Medina-Copete found an abuse of discretion in admitting this

testimony, however, because it was unreliable. Id. at 1101, 1103–04. Expert

testimony based on experience alone must reveal how the experience led to the

expert’s conclusion, why the experience is a “sufficient basis for the opinion,” and

how the experience was reliably applied. Id. at 1104. Those factors were not met

because the testimony was not based solely on the witness’s law enforcement

knowledge and experience, but also on his personal “self-study” of narcotics

iconography. Id. at 1103–04. In other words, “he did not gather the information

about these prayers and beliefs through surveillance, wiretaps, or even interviews of

persons involved[.]” Id. (quoting United States v. Holmes, 751 F.3d 846, 854 (8th

Cir. 2014) (Kelly, J., concurring)). Furthermore, the testimony improperly

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characterized prayer to Santa Muerte as a “tool[] of the trade” of drug trafficking, it

did not explain any connection between the defendant’s prayer and drug trafficking,

and it did not distinguish between ordinary citizens and drug traffickers praying to

Santa Muerte. Id. at 1102–03. As such, it should not have been admitted.

The present case is distinguishable. Unlike the expert in Medina-Copete,

Detective Jeffers’s testimony was based solely on his 22 years of law-enforcement

experience, with approximately 18 years focused on narcotics, not personal self-

study. 7 R. 234, 236. He testified that he had witnessed thousands of drug deals,

personally carried out hundreds of undercover drug deals, and was asked to train

others on handling undercover drug transactions with confidential informants. Id. at

238–39, 243. Detective Jeffers did not improperly characterize Santa Muerte

worship as a “tool of the trade.” 2 He testified that from his experience in drug

investigations, he learned traffickers pray to Santa Muerte and usually erect a shrine

with alcohol or narcotics offerings at the base to pay homage and request protection.

Id. at 260–61. Confirming this point, the Santa Muerte shrine found in Mr.

Martinez’s office had a glass of wine at the base. Id. at 261. Detective Jeffers’s

testimony in this case was based on “knowledge derived from previous professional

experience” which “falls squarely within the scope of Rule 702 and thus by definition

outside of Rule 701.” United States v. Cushing, 10 F.4th 1055, 1079 (10th Cir. 2021)

(citation omitted), cert. denied, 142 S. Ct. 813 (2022).

2 While the PSR characterized the shrine as a tool of the trade, 2 R. 9, this characterization was never presented to the jury. 7 Appellate Case: 22-1167 Document: 010110971762 Date Filed: 12/20/2023 Page: 8

Mr. Martinez argues that Medina-Copete bars the “[m]ere observation that a

correlation exists — especially when the observer is a law enforcement officer likely

to encounter a biased sample[.]” Aplt. Br. at 16, 20 (quoting Medina-Copete, 757

F.3d at 1102). But the reasoning in Medina-Copete emphasizes that the officer’s

testimony was based on his personal research in addition to his narcotics experience,

757 F.3d at 1102, and the decision rests largely on the unreliability of the expert’s

personal research into narco-saints as a “cultural iconography hobbyist[,]” id. at

1098, 1103–05. Unlike expert testimony from law enforcement officers based on

their experience — routinely upheld by this court — the Medina-Copete decision

hinged on the expert’s inability to establish how his personal self-study led to his

conclusion, how it provided a sufficient basis, or how it was reliably applied to the

facts. Id. at 1104. No such error pervaded Detective Jeffers’s expert testimony in

this case.

Mr. Martinez also argues that the testimony violated his First Amendment

rights to free association. Aplt. Br. at 21–22. He cites Dawson v. Delaware, where

admission of evidence as to defendant’s membership in the Aryan Brotherhood

violated the defendant’s First Amendment rights because it was not relevant to any

issue at trial. 503 U.S. 159, 166–167 (1992). But here, the Santa Muerte shrine is

relevant to a key issue raised by Mr. Martinez’s entrapment defense — whether he

was predisposed to drug trafficking. See United States v. Ford, 550 F.3d 975, 982

(10th Cir. 2008). “[T]he Constitution does not erect a per se barrier to the admission

of evidence concerning one’s beliefs and associations . . . simply because those

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beliefs and associations are protected by the First Amendment.” Dawson, 503 U.S. at

165. No constitutional error occurred.

2. Affecting substantial rights

The third factor of plain error review requires that any error be substantial

enough to “affect[] the outcome of the district court proceedings.” Gonzalez-Huerta,

403 F.3d at 732 (citation omitted). Even if admission of the Santa Muerte testimony

was plain error, it did not affect Mr. Martinez’s substantial rights under the third

factor.

First, Mr. Martinez was able to cross-examine Detective Jeffers and counter

his testimony that Santa Muerte shrines are primarily associated with drug

trafficking. 3 7 R. 264–65. Second, the government introduced a plethora of other

evidence to rebut Mr. Martinez’s entrapment defense and prove his predisposition to

drug trafficking. Detective Jeffers testified that he would never work with an

informant who carried a gun, he would never instruct an informant to carry a gun,

and he had never heard of a detective working with an informant who carried a gun

on a controlled purchase. Id. at 266–67. This rebuts Mr. Martinez’s testimony that

the informant threatened him with a gun. Mr. Martinez argued he gave the informant

an “outrageous” price to be left alone, id. at 150, but he in fact charged the market

When asked whether Santa Muerte is also a patron saint for “a wide variety 3

of powers, including . . . prosperity, good health, good fortune, healing, safe passage, protection against violence, and protection against violent death[,]” Detective Jeffers responded, “That is correct, sir.” 7 R. 264–65. When asked whether one had to be a drug dealer to want any of those powers, Detective Jeffers responded no. Id. at 265. 9 Appellate Case: 22-1167 Document: 010110971762 Date Filed: 12/20/2023 Page: 10

price for methamphetamine. Id. at 255. The price was determined after negotiation

indicating routine bargaining instead of a sale under duress. Id. at 85–86. When the

informant arrived at Mr. Martinez’s shop when he was not there, Mr. Martinez

arranged for the informant to return, id. at 163–64, countering the contention that he

feared the informant.

The government also provided evidence that Mr. Martinez lied under oath in a

2006 drug trial where he was convicted for crack cocaine possession. Aplee. Br. at

17–18; 7 R. 194–97. And it introduced physical evidence of drug trafficking — a

search of Mr. Martinez’s business revealed digital scales and small plastic baggies. 7

R. 225–28. Detective Jeffers testified based on his experience that only someone

involved in drug trafficking could have access to the quantity of drugs sold by Mr.

Martinez. Id. at 247. Any question of how often the informant visited Mr. Martinez,

or whether he shared office space with another person, was a question of fact for the

jury that we do not review on plain error. See United States v. Smith, 531 F.3d 1261,

1271 (10th Cir. 2008). Ample evidence supported the outcome here, and two pages

of testimony about Santa Muerte did not affect Mr. Martinez’s substantial rights.

Because Mr. Martinez cannot establish any error, plain or otherwise, under the

first two factors, or that his substantial rights were affected under the third factor, we

do not reach the fourth factor of plain error review.

B. Inadvertent robocall announcement

Because Mr. Martinez also failed to object to the court’s treatment of the

robocall announcement, we review for plain error. Mr. Martinez argues that the

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robocall undermined his credibility and presented an “unacceptable risk” of

“impermissible factors” influencing the verdict, depriving his due process rights.

Aplt. Br. at 28–29, 32–33 (citing Holbrook v. Flynn, 475 U.S. 560, 570 (1986)).

According to Mr. Martinez, the trial court should have declared a mistrial or

“specifically instruct[ed] the jury to ignore the interruption and its contents.” Id. at

34–35. By not doing so, he argues the court erred. Id. We disagree and find no

error, plain or otherwise, in the court’s treatment of the interruption.

“[O]ne accused of a crime is entitled to have his guilt or innocence determined

solely on the basis of the evidence introduced at trial, and not on grounds of official

suspicion, indictment, continued custody, or other circumstances not adduced as

proof at trial.” Taylor v. Kentucky, 436 U.S. 478, 485 (1978). For example, in

Estelle v. Williams, the Supreme Court held that it was inconsistent with due process

and equal protection for a criminal defendant to be tried in his prison clothing. 425

U.S. 501, 502, 505–06 (1976). The Court reasoned that the clothes presented a

“constant reminder of the accused’s condition” which could “affect a juror’s

judgment” in violation of the defendant’s fundamental rights. Id. at 504–05.

Unlike the defendant in Estelle, Mr. Martinez was not deprived of his due

process protections. Mr. Martinez argues that the district court should have

specifically instructed the jury to ignore the interruption. Aplt. Br. at 34. But the

court did exactly that — twice — and recessed the trial briefly to ensure that it would

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not happen again. 4 7 R. 141, 142. “A jury is presumed to follow its instructions.”

Weeks v. Angelone, 528 U.S. 225, 234 (2000). And the robocall was not a “constant

reminder of the accused’s condition” but a short event occurring only once. Cf.

Estelle, 425 U.S. at 504. There is no indication the jury had time to process what was

being said in the robocall announcement, and the court immediately reminded the

jury to disregard it. We find no error in the court’s handling of this interruption.

Because we find no error, plain or otherwise, we do not reach the third or

fourth factors of plain error review.

AFFIRMED.

4 Mr. Martinez argues this instruction does not comply with our decision in United States v. Hardwell, 80 F.3d 1471, 1491 (10th Cir.), reh’g granted in part on other grounds, 88 F.3d 897 (10th Cir. 1996). But this case is inapposite — unlike in Hardwell, where the instruction created a risk that the jury could misuse certain evidence for an improper purpose, here the instruction to disregard the robocall was obvious and could not reasonably be misunderstood by the jury. 12