United States v. Martinez

924 F. Supp. 1025, 1996 U.S. Dist. LEXIS 6034
District Court, D. Oregon·Decided April 30, 1996·No. No. CR 95-266-PA·Published·Cited by 1 cases

Opinion

OPINION

PANNER, District Judge.

Defendant Benjamin Martinez moves for judgment of acquittal or a new trial following his conviction by a jury of three counts of methamphetamine distribution and one count of possession of methamphetamine with intent to distribute. I grant the motions.

BACKGROUND

At trial, defendant conceded that he engaged in the methamphetamine transactions at issue. He maintained, however, that he was entrapped by the actions of a government informant, Alvaro Planearte. As such, Plancarte’s testimony was critical to the government’s case.

Planearte testified that he first met defendant through a mutual friend in February 1995. Planearte worked on defendant’s car and stated that he became friends with defendant. Planearte testified that with no prompting from defendant, Planearte freely announced to defendant that in addition to fixing ears, he bought and sold large quantities of drags. According to Planearte, defendant responded that he knew a person who made crank. Planearte attempted to learn the supplier’s identity but defendant was reluctant to share that information. Later, when Planearte was again fixing defendant’s car, Planearte told defendant that he wanted fifty pounds of methamphetamine “to begin with.” That same day, Planearte told Salem Police Detective Tim Diede about defendant for the first time. Diede then arranged for Planearte to arrange to purchase one-half pound of methamphetamine as a sample of what could be provided. That purchase occurred on May 24,1995.

Planearte could not remember how many times he was in contact with defendant between his first meeting and the first drag transaction. Upon further questioning, he indicated that it was less than thirty times but it could have been more or less than ten times. He took no notes describing his contacts with defendant.

Two subsequent purchases occurred. The first, June 7, 1995, was for one pound of methamphetamine. The second, June 20, 1995, was for five pounds of methamphetamine at the price of $27,500. Defendant received only $10,000 from Planearte on that date with the understanding that Planearte owed an additional $17,500. A fourth transaction was to occur on June 27, 1996. However, defendant was arrested before its completion.

Planearte receives “a few thousand” dollars per month from Diede for his informant work. In addition, he receives a bonus of approximately $3,500 or $4,000 for an arrest, as he did in this ease. Planearte is paid in cash and he pays no income taxes on this compensation. Planearte testified that he had never heard the word entrapment and that Diede had not reviewed the word or the concept with him. Although Planearte has never received any special training for performing work as an informant, he has testified as a witness in other criminal proceedings and his presentation in this ease was smooth and evidenced that he had been well-coached. In contrast, defendant, with only a fourth grade education and limited knowledge of English, was not an accomplished witness. Moreover, although Planearte and defendant each spoke through an interpreter, it was obvious that Planearte had some command of English and defendant did not.

Defendant has no prior criminal record. Other than testimony concerning the drag transactions, the government presented no evidence regarding defendant’s character. In contrast, defendant presented several witnesses attesting to his good character and reputation. These witnesses described defendant as a person easily led by others. [1028]*1028They were shocked to learn that he had engaged in drug transactions.

Defendant testified that Planearte initiated all conversations regarding drugs. Planearte initially asked defendant if he knew people who had drugs. Defendant indicated that Planearte frequently contacted him, sometimes once a day. Planearte did not refute that testimony.

Although defendant stated that Planearte promised him $20,000 if he procured the drugs, Planearte denied promising any inducements or applying any pressure. Defendant testified that Planearte repeatedly asked defendant to get involved with providing drugs but that defendant did not say yes until Planearte promised that he would be defendant’s godfather in Mexico. Testimony from defendant and at least one other witness established that the godfather or “padrino” relationship is very significant in Mexican culture.

STANDARDS

I. Motion for Judgment of Acquittal

Federal Rule of Criminal Procedure 29(c) allows for a motion for judgment of acquittal within seven days of the jury’s discharge. In considering a Rule 29 motion for judgment of acquittal, the evidence against defendant is reviewed in the light most favorable to the government to determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Von Willie, 59 F.3d 922, 928 (9th Cir.1995). All reasonable inferences are drawn in favor of the government. United States v. Andrino-Carillo, 63 F.3d 922, 924 (9th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 746, 133 L.Ed.2d 694 (1996).

II. Motion for a New Trial

The court may grant a motion for a. new trial “if required in the interest of justice.” Fed.R.Cr.P. 33. A motion for a new trial “should be granted only in exceptional cases in which the evidence preponderates heavily against the verdict.” United States v. Rush, 749 F.2d 1369, 1371 (9th Cir.1984). In deciding a motion for a new trial, I am not constrained by the requirement that I view the evidence in the light most favorable to the government. United States v. Campbell, 977 F.2d 854, 860 (4th Cir.1992), cert. denied, 507 U.S. 938, 113 S.Ct. 1331, 122 L.Ed.2d 716 (1993). Thus, I may evaluate the credibility of the witnesses. Id.; see also United States v. Sanchez, 969 F.2d 1409, 1413 (2d Cir.1992) (court may evaluate credibility of witnesses in new trial motion); United States v. Leach, 427 F.2d 1107, 1110 (1st Cir.) (same), cert. denied, 400 U.S. 829, 91 S.Ct. 57, 27 L.Ed.2d 59 (1970). When the evidence weighs so heavily against the verdict that it would be unjust to enter judgment, the court should grant a new trial. Campbell, 977 F.2d at 860.

DISCUSSION

The only issue at trial was whether Planearte had entrapped defendant. A defense of entrapment has two elements: government inducement of the crime and the absence of predisposition on the part of the defendant. United States v. Skarie,

United States v. Martinez, 924 F. Supp. 1025, 1996 U.S. Dist. LEXIS 6034 (D. Or. 1996).

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