FILED NOT FOR PUBLICATION MAY 01 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-10511
Plaintiff-Appellee, D.C. No. 4:14-cr-00093-JSW-5
v. MEMORANDUM* MICHAEL MARTIN, AKA Diesel, AKA Freddy,
Defendant-Appellant.
Appeal from the United States District Court for the Northern District of California Jeffrey S. White, District Judge, Presiding
Argued and Submitted April 9, 2018 San Francisco, California
Before: WARDLAW and CLIFTON, Circuit Judges, and KATZMANN,** Judge.
Michael Martin appeals his jury conviction and sentence for four counts of
robbery and one count of conspiracy to commit robbery affecting interstate
commerce in violation of the Hobbs Act, 18 U.S.C. § 1951. We affirm.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Gary S. Katzmann, Judge for the United States Court of International Trade, sitting by designation. 1. The district court did not commit plain error by admitting the plea
agreements of two cooperating witnesses. Martin’s counsel repeatedly attacked
both witnesses’ credibility during opening statements and cross examination. The
plea agreements were therefore admissible to rebut those attacks. See United
States v. Kats, 871 F.2d 105, 107 (9th Cir. 1989) (holding that the district court did
not abuse its discretion by admitting a plea agreement after defense counsel
attacked the witness’ credibility and questioned the witness about the agreement’s
terms).
The prosecution was not obligated to redact the agreements. The agreements
did not contain any information about Martin or relevant evidence that was not
presented at trial. Furthermore, the district court properly instructed the jury to
consider the plea agreements only to help determine the witnesses’ believability
and instructed the jury to examine their testimony with greater caution. See United
States v. Shaw, 829 F.2d 714, 717-18 (9th Cir. 1987) (holding that any
prosecutorial vouching for a cooperating witness was not a basis for reversal
because the trial court instructed the jury to consider the witness’ testimony with
caution). In addition, the government’s questions about why one cooperating
witness ultimately decided to tell the government the truth did not constitute
improper vouching because the questions “did not refer to extra-record facts” or
2 indicate that the government “could verify that [the witness] was telling the truth.”
United States v. Dorsey, 677 F.3d 944, 954 (9th Cir. 2012).
2. The government did not commit prosecutorial misconduct by asking
Martin whether he “agreed with” various pieces of information that were not in
dispute at trial. The questions, which did not concern Martin’s role in any of the
robberies, were not comparable to asking Martin whether another witness was
“inventing stories” or lying in his testimony. United States v. Alcantara-Castillo,
788 F.3d 1186, 1193 (9th Cir. 2015); United States v. Greer, 640 F.3d 1011, 1023
(9th Cir. 2011).
3. Moreover, any error in admitting the plea agreements or allowing this
line of questioning or alleged prosecutorial misconduct did not effect Martin’s
substantial rights. The government produced significant evidence against Martin at
trial. In addition to the testimony of the cooperating witnesses describing Martin’s
involvement in the conspiracy, the government produced evidence that Martin
rented the cars used in the robberies, his cell phone records showed that he was in
the vicinity of the robberies, his fingerprints were on the license plate covers on the
rental cars, and he discussed his involvement in the conspiracy with other
coconspirators. Admission of the plea agreements and the questioning of Martin
and the cooperating witness did not, therefore, affect the outcome of the trial.
3 4. The district court did not commit plain error by admitting a list of
robberies prepared by a cooperating witness. Although the prosecution did not
establish an adequate foundation for admission of the list under Fed. R. Evid.
803(5), the record reflects that the list met the requirements of a past recollection
recorded. Furthermore, any error in admitting the list did not affect the outcome of
the trial. The cooperating witness testified extensively about the robberies listed,
and would have done so even without admission of the list as an exhibit.
5. The three recorded calls between a cooperating witness and other
members of the conspiracy were properly admitted as coconspirator statements
under Fed. R. Evid. 801(2)(E). The district court did not err in concluding that
these calls included statements made during and in furtherance of the conspiracy.
A conspiracy does not necessarily come to an end simply because two of its
participants have been arrested. See United States v. Mason, 658 F.2d 1263, 1269
(9th Cir. 1981) (“Conspiracies do not necessarily end when all but one of the co-
conspirators are arrested.”); see also United States v. Gordon, 844 F.2d 1397, 1402
(9th Cir. 1988) (holding that recorded statements between one member of a
conspiracy and a government cooperator were admissible against another member
of the conspiracy once the conspiracy had been established). The conversations at
issue plainly “further[ed] the common objectives of the conspiracy,” United States
4 v. Yarbrough, 852 F.2d 1522, 1535 (9th Cir. 1988), as the participants discussed
strategies for future robberies and further development of the criminal group on
each of the calls.
Nor did the district court err in denying Martin’s Fed. R. Evid. 402 and 403
objections. The calls were probative of Martin’s knowledge and intent, and did not
contain material that would “lure the factfinder into declaring guilt on a ground
different from proof specific to the offense charged.” Old Chief v. United States,
519 U.S. 172, 180 (1997). In any event, any error in admitting the calls was
harmless, as Martin does not challenge the admission of other significantly more
incriminating phone calls in which he contacted a potential robbery victim.
6. We do not generally review ineffective assistance claims on direct
appeal. See United States v.
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FILED NOT FOR PUBLICATION MAY 01 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-10511
Plaintiff-Appellee, D.C. No. 4:14-cr-00093-JSW-5
v. MEMORANDUM* MICHAEL MARTIN, AKA Diesel, AKA Freddy,
Defendant-Appellant.
Appeal from the United States District Court for the Northern District of California Jeffrey S. White, District Judge, Presiding
Argued and Submitted April 9, 2018 San Francisco, California
Before: WARDLAW and CLIFTON, Circuit Judges, and KATZMANN,** Judge.
Michael Martin appeals his jury conviction and sentence for four counts of
robbery and one count of conspiracy to commit robbery affecting interstate
commerce in violation of the Hobbs Act, 18 U.S.C. § 1951. We affirm.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Gary S. Katzmann, Judge for the United States Court of International Trade, sitting by designation. 1. The district court did not commit plain error by admitting the plea
agreements of two cooperating witnesses. Martin’s counsel repeatedly attacked
both witnesses’ credibility during opening statements and cross examination. The
plea agreements were therefore admissible to rebut those attacks. See United
States v. Kats, 871 F.2d 105, 107 (9th Cir. 1989) (holding that the district court did
not abuse its discretion by admitting a plea agreement after defense counsel
attacked the witness’ credibility and questioned the witness about the agreement’s
terms).
The prosecution was not obligated to redact the agreements. The agreements
did not contain any information about Martin or relevant evidence that was not
presented at trial. Furthermore, the district court properly instructed the jury to
consider the plea agreements only to help determine the witnesses’ believability
and instructed the jury to examine their testimony with greater caution. See United
States v. Shaw, 829 F.2d 714, 717-18 (9th Cir. 1987) (holding that any
prosecutorial vouching for a cooperating witness was not a basis for reversal
because the trial court instructed the jury to consider the witness’ testimony with
caution). In addition, the government’s questions about why one cooperating
witness ultimately decided to tell the government the truth did not constitute
improper vouching because the questions “did not refer to extra-record facts” or
2 indicate that the government “could verify that [the witness] was telling the truth.”
United States v. Dorsey, 677 F.3d 944, 954 (9th Cir. 2012).
2. The government did not commit prosecutorial misconduct by asking
Martin whether he “agreed with” various pieces of information that were not in
dispute at trial. The questions, which did not concern Martin’s role in any of the
robberies, were not comparable to asking Martin whether another witness was
“inventing stories” or lying in his testimony. United States v. Alcantara-Castillo,
788 F.3d 1186, 1193 (9th Cir. 2015); United States v. Greer, 640 F.3d 1011, 1023
(9th Cir. 2011).
3. Moreover, any error in admitting the plea agreements or allowing this
line of questioning or alleged prosecutorial misconduct did not effect Martin’s
substantial rights. The government produced significant evidence against Martin at
trial. In addition to the testimony of the cooperating witnesses describing Martin’s
involvement in the conspiracy, the government produced evidence that Martin
rented the cars used in the robberies, his cell phone records showed that he was in
the vicinity of the robberies, his fingerprints were on the license plate covers on the
rental cars, and he discussed his involvement in the conspiracy with other
coconspirators. Admission of the plea agreements and the questioning of Martin
and the cooperating witness did not, therefore, affect the outcome of the trial.
3 4. The district court did not commit plain error by admitting a list of
robberies prepared by a cooperating witness. Although the prosecution did not
establish an adequate foundation for admission of the list under Fed. R. Evid.
803(5), the record reflects that the list met the requirements of a past recollection
recorded. Furthermore, any error in admitting the list did not affect the outcome of
the trial. The cooperating witness testified extensively about the robberies listed,
and would have done so even without admission of the list as an exhibit.
5. The three recorded calls between a cooperating witness and other
members of the conspiracy were properly admitted as coconspirator statements
under Fed. R. Evid. 801(2)(E). The district court did not err in concluding that
these calls included statements made during and in furtherance of the conspiracy.
A conspiracy does not necessarily come to an end simply because two of its
participants have been arrested. See United States v. Mason, 658 F.2d 1263, 1269
(9th Cir. 1981) (“Conspiracies do not necessarily end when all but one of the co-
conspirators are arrested.”); see also United States v. Gordon, 844 F.2d 1397, 1402
(9th Cir. 1988) (holding that recorded statements between one member of a
conspiracy and a government cooperator were admissible against another member
of the conspiracy once the conspiracy had been established). The conversations at
issue plainly “further[ed] the common objectives of the conspiracy,” United States
4 v. Yarbrough, 852 F.2d 1522, 1535 (9th Cir. 1988), as the participants discussed
strategies for future robberies and further development of the criminal group on
each of the calls.
Nor did the district court err in denying Martin’s Fed. R. Evid. 402 and 403
objections. The calls were probative of Martin’s knowledge and intent, and did not
contain material that would “lure the factfinder into declaring guilt on a ground
different from proof specific to the offense charged.” Old Chief v. United States,
519 U.S. 172, 180 (1997). In any event, any error in admitting the calls was
harmless, as Martin does not challenge the admission of other significantly more
incriminating phone calls in which he contacted a potential robbery victim.
6. We do not generally review ineffective assistance claims on direct
appeal. See United States v. Cochrane, 985 F.2d 1027, 1029 (9th Cir. 1993). We
consider Martin’s claim in this case, however, because the record is sufficiently
complete. Martin has not shown that his counsel was deficient or that he was
prejudiced by any alleged deficiencies. Strickland v. Washington, 466 U.S. 668,
687, 694 (1984). Martin’s counsel’s failure to object to the admission of the plea
agreements and lines of questioning was not deficient, as “[c]ounsel’s failure to
make a futile motion does not constitute ineffective assistance of counsel.” James
v. Borg, 24 F.3d 20, 27 (9th Cir. 1994). In addition, his counsel referred to the
5 cooperating witness’ robbery list in order to impeach the witness’ credibility. His
failure to object to the admission of this list is thus best construed as a “tactical
decision[]” for which counsel has “wide latitude.” Strickland, 466 U.S. at 689. In
light of the overwhelming evidence presented against Martin, Martin was not
prejudiced by any deficiencies on these grounds. Martin has not, therefore,
established that he received ineffective assistance of counsel.
7. The district court did not err in applying an adjustment for obstruction
of justice under U.S.S.G. § 3C1.1. The district court expressly found on the record
that Martin gave false testimony on material matters with willful intent. See
United States v. Johnson, 812 F.3d 757, 761 (9th Cir. 2016). Martin’s testimony at
trial was plainly contradicted by the testimony of the cooperating witnesses and
independent evidence. See United States v. Harrison, 585 F.3d 1155, 1161 (9th
Cir. 2009) (holding that the district court did not err in applying an obstruction
enhancement “[i]n light of the patent discrepancy between [the defendant’s]
testimony, the physical evidence and the testimony of every other witness”); see
also United States v. Dunnigan, 507 U.S. 87, 96 (1993) (“[A] defendant’s right to
testify does not include a right to commit perjury.”). We therefore affirm the
district court’s imposition of the sentencing enhancement for obstruction.
6 8. The district court did not err by adding grouping points for two
uncharged robberies under U.S.S.G. §§ 3D1.1 and 3D1.4. The jury verdict did not
specify which offenses were the objects of the conspiracy. Therefore, the district
court correctly added grouping points for the offenses of which it would have
convicted Martin were it sitting as the trier of fact. See U.S.S.G. § 1B1.2 App.N.4
(noting that U.S.S.G. § 1B1.2(d) “should only be applied with respect to an object
offense alleged in the conspiracy count if the court, were it sitting as a trier of fact,
would convict the defendant of conspiring to commit that object offense”). Both
cooperating witnesses testified about Martin’s role in the uncharged robberies.
Therefore, the district court did not err in adding grouping points for the two
robberies.
AFFIRMED.