United States v. Rodolfo Martinez

412 F. App'x 189
CourtCourt of Appeals for the Eleventh Circuit
DecidedJanuary 5, 2011
Docket09-16345
StatusUnpublished

This text of 412 F. App'x 189 (United States v. Rodolfo Martinez) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh 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. Rodolfo Martinez, 412 F. App'x 189 (11th Cir. 2011).

Opinion

PER CURIAM:

Rodolfo Martinez appeals his convictions for conspiracy to obstruct interstate commerce, in violation of 18 U.S.C. § 1951; conspiracy to possess with intent to distribute at least 500 grams of cocaine, in violation of 21 U.S.C. § 846; conspiracy to use a firearm during the commission of a crime of violence and a drug trafficking crime, in violation of 18 U.S.C. § 924(o); use of a firearm during a drug trafficking crime and a crime of violence, in violation of 18 U.S.C. § 924(c)(1); and possession of a firearm by a convicted felon in violation *191 of 18 U.S.C. § 922(g)(1). Martinez also challenges his 60-month consecutive sentence for using a firearm during a crime of violence.

I.

Martinez argues that comments made by the prosecutor during closing arguments constituted prosecutorial misconduct. We review de novo a claim of prosecutorial misconduct during closing arguments. United States v. Eckhardt, 466 F.3d 938, 947 (11th Cir.2006). “To establish prosecutorial misconduct, (1) the remarks must be improper, and (2) the remarks must prejudicially affect the substantial rights of the defendant.” Id. (quotation marks omitted). “A defendant’s substantial rights are prejudicially affected when a reasonable probability arises that, but for the remarks, the outcome of the trial would have been different.” Id. ‘When the record contains sufficient independent evidence of guilt, any error is harmless.” Id.

Martinez asserts that the government engaged in prosecutorial misconduct when the prosecutor said: “I don’t think there’s any question based on the evidence you’ve seen, I don’t think there’s any reasonable doubt whatsoever.... I think based on [the] evidence, as long as you keep your eye on the ball and don’t let the defense lawyer distract you, which is his job.” Martinez argues that this statement improperly injected the prosecutor’s personal opinion into the case and attacked defense counsel’s character. We do not agree that this remark rises to the level of prosecutorial misconduct. The prosecutor’s comment could also be characterized as an attempt to argue the weight of the evidence. See United States v. Tisdale, 817 F.2d 1552, 1556 (11th Cir.1987) (concluding that prosecutor’s remark—“I believe the government has proven its case beyond a reasonable doubt”—went to the weight of the evidence and was not improper). In any event, any problem regarding this comment was cured by the district court’s instruction to disregard the prosecutor’s statement. See United States v. Gonzalez, 122 F.3d 1383, 1388-89 (11th Cir.1997).

Martinez also asserts that it was improper for the prosecutor to say: “[I]f it wasn’t a law enforcement investigation, who knows what might have happened. Thank God it was a law enforcement investigation this time and that there wasn’t an actual victim.” He argues that the prosecutor’s statement improperly inflamed the jury. We reject this argument as well. “The prosecutor, as an advocate, is entitled to make a fair response to the arguments of defense counsel.” United States v. Hiett, 581 F.2d 1199, 1204 (5th Cir.1978). 1 During his closing argument, defense counsel encouraged the jury to acquit Martinez because the robbery was a “fictional situation.” The prosecutor’s comment fairly responded to that argument.

II.

Martinez contends that the district court erred in denying his motion to dismiss the indictment based on outrageous government conduct. A motion to dismiss the indictment on the basis of outrageous government conduct involves a question of law that we review de novo. United States v. Gupta, 463 F.3d 1182, 1191 (11th Cir.2006); United States v. Savage, 701 F.2d 867, 868 n. 1 (11th Cir.1983).

*192 “Outrageous government conduct occurs when law enforcement obtains a conviction for conduct beyond the defendant’s predisposition by employing methods that fail to comport with due process guarantees.” United States v. Ciszkowski, 492 F.3d 1264, 1270 (11th Cir.2007). “Under this standard, the conduct must be so outrageous that it is fundamentally unfair.” Id.; see also United States v. Haimowitz, 725 F.2d 1561, 1577 (11th Cir.1984) (“Whether outrageous government conduct exists turns upon the totality of the circumstances with no single factor controlling and the defense can only be invoked in the rarest and most outrageous circumstances.” (quotation marks omitted)).

The government’s conduct in this case was within constitutionally permitted limits. The evidence in the record shows that Martinez was a willing and active participant in a scheme to rob a home believed to contain narcotics. The government’s conduct in encouraging Martinez’s co-conspirators to keep him involved in the scheme does not “violate[] fundamental fairness and shock[ ] the universal cause of justice.” United States v. Costales, 5 F.3d 480, 487 (11th Cir.1993) (quotation marks omitted). The district court did not err in denying Martinez’s motion to dismiss the indictment based on outrageous government conduct.

III.

Martinez also contends that the district court erred in refusing to give a jury instruction on entrapment. “We review a district court’s refusal to give a particular jury instruction for abuse of discretion.” United States v. Yeager, 331 F.3d 1216, 1222 (11th Cir.2003) (quotation marks omitted).

Entrapment is an affirmative defense with two elements: “(1) government inducement of the crime and (2) the defendant’s lack of predisposition to commit the crime before the inducement.” United States v. Orisnord, 483 F.3d 1169, 1178 (11th Cir.2007).

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Related

United States v. Gonzalez
122 F.3d 1383 (Eleventh Circuit, 1997)
United States v. Livan Alfonso Raad
406 F.3d 1322 (Eleventh Circuit, 2005)
United States v. Mahendra Pratap Gupta
463 F.3d 1182 (Eleventh Circuit, 2006)
United States v. Robert Eckhardt
466 F.3d 938 (Eleventh Circuit, 2006)
United States v. Fednert Orisnord
483 F.3d 1169 (Eleventh Circuit, 2007)
United States v. Ciszkowski
492 F.3d 1264 (Eleventh Circuit, 2007)
United States v. Segarra
582 F.3d 1269 (Eleventh Circuit, 2009)
United States v. Belfast
611 F.3d 783 (Eleventh Circuit, 2010)
Abbott v. United States
131 S. Ct. 18 (Supreme Court, 2010)
United States v. Tommy Hiett
581 F.2d 1199 (Fifth Circuit, 1978)
Larry Bonner v. City of Prichard, Alabama
661 F.2d 1206 (Eleventh Circuit, 1981)
United States v. Johnny Tisdale
817 F.2d 1552 (Eleventh Circuit, 1987)
United States v. Chirinos
112 F.3d 1089 (Eleventh Circuit, 1997)

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Bluebook (online)
412 F. App'x 189, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-rodolfo-martinez-ca11-2011.