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FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS February 16, 2024
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 22-2034
JODY RUFINO MARTINEZ, a/k/a Mono,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 1:19-CR-03725-JB-1)
_________________________________
Nichols T. Hart (Carter B. Harrison IV with him on the briefs), Harrison, Hart & Davis,
LLC, Albuquerque, NM, for Defendant-Appellant.
Richard C. Williams, Assistant United States Attorney (Alexander M.M. Uballez, United
States Attorney, Albuquerque, New Mexico, with him on the brief), Las Cruces, NM, for
Plaintiff-Appellee.
_________________________________
Before HOLMES, Chief Judge, MORITZ, and EID, Circuit Judges.
_________________________________
HOLMES, Chief Judge.
_________________________________
A jury convicted Jody Rufino Martinez, a member of the Syndicato de Nuevo
México (“SNM”), a violent New Mexico-based prison gang, of murder under the
Violent Crimes in Aid of Racketeering (“VICAR”) Act, 18 U.S.C. § 1959(a),
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racketeering conspiracy, and unlawful possession of a firearm. Mr. Martinez appeals
his convictions, arguing that the district court abused its discretion in three principal
ways: (1) by denying his motion to dismiss under the Speedy Trial Act, (2) by
admitting unduly prejudicial evidence during trial, and (3) by denying his motion for
a new trial after evidence emerged that he was involved in threats to kill the presiding
district court judge. Exercising jurisdiction under
28 U.S.C. § 1291, we affirm.
I. BACKGROUND
Mr. Martinez’s convictions stem from the 2008 murder of David Romero and
the 2018 shooting of Donald Salazar. To begin, we offer a general overview of the
facts established at trial concerning the culture and operations of SNM and those two
incidents. Next, we briefly summarize the procedural history leading to Mr.
Martinez’s appeal. We explore in greater detail the factual and procedural
background pertinent to Mr. Martinez’s appellate challenges in the relevant sections
of our analysis.
A. Factual Background
1. SNM
SNM has operated within New Mexico’s prison system for decades. Indeed,
the gang’s purpose is to “run the prison system,” a mission it accomplishes through
violent crime and drug distribution, both inside the prison system and “on the
streets.” R., Vol. 4, at 892 (Test. of Mario Rodriguez) (Trial Tr., Vol. 3, dated Mar.
3, 2021). In that regard, violence is central to the gang’s life and the activities of
gang members.
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Gang leadership exercises control over the organization by embracing a
“[b]lood in, blood out” philosophy, meaning that a prospective member must “spill
an enemy’s or rival’s blood,” id.—which is called “[e]arning your bones,” id. at
895—“and [then] there is no getting out until you are dead,”
id. at 892. When a
person becomes a member (a “carnal”), he is expected “to perpetuate the violence of
the SNM” by assaulting or killing rivals,
id. at 894, sex offenders, and “snitches,”
id.
at 1341 (Test. of Matthew Martinez) (Trial Tr., Vol. 5, dated Mar. 5, 2021). A
member’s capacity to inflict violence is a critical component of the organization’s
broader effort to maintain status in New Mexico’s criminal underbelly. As one SNM
member explained, SNM maintains its primacy “by instilling fear in other people.”
Id. at 2060 (Test. of Billy Cordova) (Trial Tr., Vol. 8, dated Mar. 10, 2021). In
SNM’s view, that means that “if you move on one of us, we move back on you.”
Id.
In that regard, a “move” on SNM was always perceived as a sign of
“disrespect.” Id. And “respect” in SNM’s milieu is “everything”; it is so important
that it behooves SNM members to “protect it with [their] li[ves].”
Id. at 897.
Because tolerating disrespect threatens to unravel the fabric of its power—that is,
fear—SNM members cannot countenance it in “any way, shape, or fashion, no matter
how severe the consequences are”—even if those consequences entail “get[ting] a
life sentence.”
Id. at 2060.
But just as “get[ting] a life sentence” to maintain “respect” will get you “a pat
on the back” in SNM, id., disobeying orders will get you “green l[it]”—meaning,
killed,
id. at 944 (Test. of Roy Martinez) (Trial Tr., Vol. 3, dated Mar. 3, 2021).
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With death as the punishment for insubordination, SNM’s carnals have “no choice,”
in their view, but to follow orders—including orders to kill people suspected of
cooperating with law enforcement. Id. at 923. As one SNM member explained,
“[w]hen there is a green light” on the line, SNM members “don’t take th[e] chance”
of being disobedient.
Id. at 2052.
2. The FBI’s Investigation into SNM
In March 2015, the FBI launched an investigation of SNM after receiving
information regarding threats to New Mexico Department of Corrections personnel.
The investigation and resulting charges occurred in phases, the last of which was
prompted by the 2019 murder of a cooperating witness. The government arrested Mr.
Martinez as part of this latter phase of the investigation.
3. The VICAR Charge and the 2008 Murder of David Romero
a. Mr. Romero’s Failed Drug Delivery
Though not a member of SNM, David Romero, Mr. Martinez’s cousin, agreed
to smuggle drugs into New Mexico prison for the gang’s consumption. The risks
were high: “if someone was asked to smuggle drugs into a jail and failed to follow
through” they would be punished with “severe consequence[s],” including “[g]reat
bodily harm.” Id. at 1112 (Test. of Rudy Salazar) (Trial Tr., Vol. 4, dated Mar. 4,
2021).
But, according to Rudy Salazar (“Rudy”), who joined SNM in the summer of
2008, Mr. Martinez had enough confidence in Mr. Romero to entrust him with “a
package of drugs” intended for his imprisoned compatriots. Id. at 1113. Mr.
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Romero, however, “burnt” Mr. Martinez by “never turn[ing] himself in to the
[authorities], and . . . disappearing” with the goods. Id. When word got around, the
“carnals” took Mr. Romero’s failure to hold up his end of the deal as “disrespect.”
Id. at 1358. In effect, by absconding with the drugs, Mr. Romero broke “one of the
codes that you never break”: he “cross[ed] the SNM.”
Id. Mr. Martinez responded
by calling an Albuquerque-based SNM associate, Billy Cordova (“Billy”), to “hold”
Mr. Romero “if . . . he show[ed] up” at a “sugar shack”—viz., a “heroin house”—
“because he had burned [SNM].”
Id. at 2061–62. Billy never had the opportunity to
“hold” Mr. Romero, as the latter never appeared in Albuquerque.
b. The Murder
In November 2008, Mr. Romero emerged but “was on the run” and told Rudy
that he “wanted to turn himself in.” Id. at 1111. Rudy told Mr. Martinez that Mr.
Romero “was looking for help to turn himself in,” and, more specifically, “was
looking for another package of drugs” to carry as he surrendered to authorities.
Id. at
1114. Mr. Martinez appeared amenable and personally arranged for Mr. Romero to
smuggle additional drugs into the county jail.
But the trial record showed that Mr. Martinez had other plans. Specifically, it
showed that Mr. Martinez, along with a group of affiliates, including Rudy, “picked
up [Mr. Romero] in front of a project house” and brought him to SNM member
Jerome Cordova’s (“Jerome”) home in Chimayo, New Mexico. Id. at 1116–17.
Everyone—including Mr. Romero, who struggled with addiction—proceeded to
consume drugs. Mr. Martinez, however, confronted Rudy, presenting him with “a
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foot-and-a-half length of cord”—specifically, cut jumper cable cord—and told him
“this is on you.” Id. at 1120. Rudy understood Mr. Martinez—“who was calling the
shots that evening”—to be ordering him “to kill David Romero.”
Id. at 1118, 1120.
Any doubt regarding Mr. Martinez’s designs was erased by his subsequent
conduct. Using duct tape, Mr. Martinez secured the cut jumper cables to Rudy’s
hands and followed him to the bedroom where Mr. Romero was “getting high.” Id. at
1121–22. When Rudy entered the bedroom, he saw that Mr. Romero “had a syringe
in one hand and a spoon in the other,” and “had just finished” shooting up.
Id. Upon
seeing Rudy, Mr. Romero appeared “shock[ed],” his eyes bulging from cocaine use.
Id. at 1122. Rudy testified that he hesitated to kill Mr. Romero. But Mr. Martinez
“gave [him] a nudge” and ordered “[a]hora,” 1—prompting him to “thr[o]w the cord
over [Mr. Romero’s] neck,” wrapping it around twice.
Id. at 1123. Mr. Martinez
jumped to the head of the bed, placed Mr. Romero’s head in a leglock, and “twisted it
from side to side, trying to break his neck.”
Id. at 1125–26. Eventually, Mr. Romero
stopped moving. After checking for a pulse and finding none, Mr. Martinez
confirmed that Mr. Romero was dead.
Mr. Martinez then assisted the group in removing Mr. Romero’s clothes and
the bed sheets—as they were murder evidence, after all—and placed them “in a . . .
big black trash bag.” Id. at 1128. Members of the group, including Rudy and
Jerome, then wrapped Mr. Romero’s body in a comforter and loaded it in the back of
1
According to Rudy Salazar’s testimony, “[a]hora” means “now.” R.,
Vol. 4, at 1123.
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a pickup truck. Mr. Martinez tasked Rudy with disposing of Mr. Romero’s body.
Yet, before Rudy could do so, Mr. Martinez gave him a more pressing assignment:
“Before I jumped into the truck, [Mr. Martinez] grabbed me, pulled me towards him,
and poked me in my throat . . . and handed me a knife and said, ‘Stab him. Make
sure he’s dead.’” Id. at 1129–30. Rudy did as instructed, and, with Jerome’s help,
“rolled [Mr. Romero] off [a] bridge.”
Id. at 1133. From there, the pair drove to a
back road where they set fire to Mr. Romero’s clothes and the bedding used to
transport his body. Mr. Martinez greeted them when they returned, shaking their
hands, and affectionately telling Rudy, “I’ll talk to you later.”
Id. at 1136.
On Friday, December 5, 2008, Mr. Romero’s body was found in a river near
Chimayo, New Mexico. When police discovered Mr. Romero’s body, “they flipped
[it] over, [and] . . . saw a stab wound . . . to the neck.” Id. at 1028 (Test. of Algin
Mendez) (Trial Tr., Vol. 4, dated Mar. 4, 2021). The official cause of death was a
stab wound to the neck, although strangulation could not be ruled out.
c. The Failed Alibi
New Mexico State Police interviewed Mr. Martinez the day after finding Mr.
Romero’s body, and again four days later. Mr. Martinez claimed that he had been
with his then-wife, Judith Perez-Martinez, during the relevant timeframe. Indeed,
when the police talked to her, she provided a partial alibi. At trial, however, Ms.
Perez-Martinez testified that Mr. Martinez had not been with her, and that she had
lied because she feared Mr. Martinez.
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d. Mr. Martinez’s Admissions
Though Mr. Martinez denied killing Mr. Romero to the police, the government
presented evidence showing he was eager to discuss the murder with SNM associates.
According to SNM member Jose Lovato, Mr. Martinez took credit for Mr. Romero’s
murder and bragged that “he slit [Mr. Romero’s] throat.” Id. at 2134 (Test. of Jose
Lovato) (Trial Tr., Vol. 8, dated Mar. 10, 2021). Likewise, Mr. Martinez boasted to
Billy Cordova that he “whacked” Mr. Romero, “slit his throat, and dumped him in
the river.”
Id. at 2065.
Despite Mr. Martinez’s evident pride in killing Mr. Romero, SNM leadership
failed to, in his view, adequately compensate him for his “work.” Id. at 2186 (Test.
of Jerry Montoya) (Trial Tr., Vol. 8, dated Mar. 10, 2021). According to one SNM
associate to whom Mr. Martinez complained, Jerry Montoya, Mr. Martinez thought
his murder of Mr. Romero entitled him to receive the “keys to the north”—meaning
“[b]eing the boss, . . . [and] running the streets” in northern New Mexico.
Id. If not
that, Mr. Martinez thought, at the very least, he deserved “a bigger tribute” from
SNM member Matthew Martinez, who “was on the streets, sending in drugs and
money to his friends” in prison.
Id. at 2187. In that regard, when lamenting the size
of his drug tribute, Mr. Martinez emphasized the nature of the “work” he had “put in”
for the organization—“committ[ing] . . . a murder”—by making a strangling motion
with his hands.
Id. at 2187–88.
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4. The RICO Conspiracy, the Felon-in-Possession Charge, and
the 2018 Shooting of Mr. Donald Salazar
In Count 2 of the Superseding Indictment, the government alleged that Mr.
Martinez engaged in a RICO conspiracy. To convict Mr. Martinez on that count, the
jury had to find that he joined an agreement to conduct the affairs of an enterprise
through a pattern of racketeering activity. This, in turn, required the jury to agree
that at least one member of the conspiracy committed two or more racketeering acts.
The Superseding Indictment alleged several such acts, including the 2018 shooting of
Donald Salazar (“Donald”), Rudy Salazar’s brother. Mr. Martinez’s shooting of
Donald also served as the basis for Count 4, the felon-in-possession charge. The
pertinent facts established at trial concerning this matter are as follows.
a. The Dispute Between Donald Salazar and Mr. Martinez
While imprisoned in the summer of 2018, Mr. Martinez got into a fight with
Donald, a member of a rival street gang. According to Donald, the fight unfolded
after Mr. Martinez refused to relay a message to other inmates. “[H]urt” by Mr.
Martinez’s rejection, Donald “walked away.” R., Vol. 4, at 1594 (Test. of Donald
Salazar) (Trial Tr., Vol. 6, dated Mar. 8, 2021). As he did so, Mr. Martinez “called
[him] a bitch.” Id. Later that day, Donald confronted Mr. Martinez, but Mr.
Martinez “thr[e]w the first punch” and hit him with a “jab.”
Id. at 1596–1597. A
melee ensued and the end results were unfavorable to Mr. Martinez: Donald, to be
sure, “had a bloody nose,” but Mr. Martinez sported “a black eye” and was beaten
“bloody.”
Id. at 1598. Even Mr. Martinez knew that he lost. Recounting what Mr.
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Martinez told him of the struggle, Mr. Lovato testified that Donald “got the best of”
Mr. Martinez. Id. at 2132. Under SNM’s rules, this was “an act of disrespect.”
Id.
And the consequence for “disrespect” is “death.”
Id.
b. The Shooting
On October 24, 2018, by happenstance, Mr. Martinez and Donald ended up at
the same house to buy drugs. When Mr. Martinez first entered the house, “he was in
a good mood.” Id. at 1603. “But when he s[aw] [Donald], his whole demeanor
changed.”
Id. Mr. Martinez confronted Donald, and referring to their prison fight,
asked “why [he was] going around talking that [he] fucked [him] up.”
Id. Donald
quipped, “Well, I didn’t have a black eye or nothing, homes.”
Id. at 1603–04.
Mr. Martinez exited the house, retrieved a gun from his truck, returned, and,
though aiming for Donald’s genitals, shot him in the leg. After hearing the gunshot,
a sixteen-year-old child entered the room; Mr. Martinez told him to “[t]ake [Donald]
to the hospital or [he would] shoot [him], too.” Id. at 1816 (Test. of Joey Rodriguez)
(Trial Tr., Vol. 7, dated Mar. 9, 2021). When police arrested and interviewed him
over Donald’s shooting, Mr. Martinez advised that he was “not a gun-type person,
I’m a knife-type person.”
Id. at 1985 (Test. of Sgt. Caroline Brandle) (Trial Tr., Vol.
8, dated Mar. 10, 2021).
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c. Mr. Martinez’s Subsequent Statement
In 2019, while jailed in Santa Fe, Mr. Martinez instructed Jose Lovato to kill
Donald if Mr. Lovato saw him when he was released—and to make sure “that
everybody knew it was for the S.”2 Id. at 2133.
B. Procedural History
On October 16, 2019, a one-count indictment charged Mr. Martinez with being
a felon in possession of a firearm and ammunition. Following Mr. Martinez’s initial
indictment, the district court scheduled trial to begin on December 16, 2019. Eleven
days before the scheduled trial date, on December 5, 2019, the government filed a
complaint charging Mr. Martinez with a racketeering conspiracy in violation of 18
U.S.C. § 1962(d). On December 11, 2019, the grand jury returned a Superseding
Indictment containing that charge; the Superseding Indictment also realleged the
felon-in-possession charge, renumbered as Count 2. On January 9, 2020, the grand
jury returned a Second Superseding Indictment, which realleged the felon-in-
2
The government elicited this testimony from Mr. Lovato. However,
apparently neither during the course of Mr. Lovato’s examination nor later in its
appellate briefing does the government attempt to clarify the precise import of Mr.
Martinez’s “for the S” comment. A reasonable jury likely could have inferred that,
according to Mr. Lovato, Mr. Martinez was instructing him to tell everybody that the
killing was for SNM to retaliate for Donald’s act of disrespect. And that is the way
the government framed this exchange in its closing argument to the jury. See R.,
Vol. 4, at 2797 (discussing Donald’s “act of disrespect” in attacking Mr. Martinez
and Mr. Lovato’s knowledge that Mr. Martinez “had retaliated for that act of
disrespect”).
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possession and racketeering conspiracy charges and raised VICAR and witness
tampering allegations.3
After the grand jury returned the Superseding Indictment in December 2019
but before it returned the Second Superseding Indictment in January 2020, the parties
attended a pretrial conference. At the conference, Mr. Martinez advised that he
intended to move to sever the counts. The government opposed severance and,
owing to its anticipated disclosure of approximately 90,000 pages of discovery
related to the racketeering charge, said that a continuance might be necessary if a
joint trial was to be held.
Both parties filed motions later that day. As it had previously telegraphed, the
government moved to continue the December 16 trial, citing the need to disclose the
racketeering discovery and the risk that defense counsel would be ineffective without
sufficient time to review it. For his part, Mr. Martinez filed a motion to sever based
on “an untenable conflict” between waiving “the at-most-70-days Speedy Trial Act
protection for the felon-in-possession charge [and] the at-least-30-days Speedy Trial
Act protection for the RICO Conspiracy charge,” as well as due to the purported
inadmissibility of gang-affiliation evidence in the felon-in-possession trial. R., Vol.
1, at 59 (Def.’s Mot. to Sever Offenses, filed Dec. 12, 2019) (hereinafter the “Motion
to Sever”). According to Mr. Martinez, these factors created prejudice that
necessitated severance under Federal Rule of Criminal Procedure 14. As discussed in
3
The jury acquitted Mr. Martinez of witness tampering; that charge is not
subject to the instant appeal.
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greater detail, infra, the district court orally denied Mr. Martinez’s Motion to Sever
and subsequently granted the government’s motion to continue.
Later, on January 19, 2021, Mr. Martinez moved to dismiss the felon-in-
possession charge on Speedy Trial Act grounds. On January 27, 2021, the district
court entered a written memorandum opinion and order explaining its decision to
deny Mr. Martinez’s Motion to Sever. Then, on February 18, 2021, the district court
orally denied Mr. Martinez’s motion to dismiss under the Speedy Trial Act.
Finally, Mr. Martinez’s trial commenced on March 1, 2021. The jury returned
its verdict on March 16, 2021, finding Mr. Martinez guilty of the counts of VICAR,
racketeering conspiracy, and felon-in-possession, and acquitting him of the count of
witness tampering. Following the jury’s verdict, Mr. Martinez filed a sealed motion
for new trial in which he argued that testimony allegedly linking Mr. Martinez to
threats against the court entitled him to a new trial. The district court denied that
motion in a memorandum opinion and order on July 12, 2021.
II. STANDARD OF REVIEW
We review each of Mr. Martinez’s appellate challenges through the prism of
our abuse of discretion standard. See United States v. Banks, 761 F.3d 1163, 1174
(10th Cir. 2014) (reviewing the denial of a motion to dismiss for violation of the
Speedy Trial Act, involving ends-of-justice continuances, for an abuse of discretion);
United States v. Thompson,
524 F.3d 1126, 1131 (10th Cir. 2008) (same);
Sprint/United Mgmt. Co. v. Mendelsohn,
552 U.S. 379, 384 (2008) (reviewing rulings
applying Federal Rule of Evidence 403 for an abuse of discretion); United States v.
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Gwathney, 465 F.3d 1133, 1144 (10th Cir. 2006) (reviewing the denial of a motion
for a new trial under the abuse of discretion standard). “A court abuses its discretion
when it ‘renders a judgment that is arbitrary, capricious, whimsical, or manifestly
unreasonable.’” United States v. Perrault,
995 F.3d 748, 764–65 (10th Cir. 2021)
(quoting United States v. Munoz-Nava,
524 F.3d 1137, 1146 (10th Cir. 2008)). And
“[a] district court would necessarily abuse its discretion if it based its ruling on an
erroneous view of the law or on a clearly erroneous assessment of the evidence.”
Cooter & Gell v. Hartmarx Corp.,
496 U.S. 384, 405 (1990). As such, “we review
the district court’s compliance with the legal requirements of the [statute or rule
under which it made its ruling] de novo and its underlying factual findings for clear
error.” Banks,
761 F.3d at 1174.
We have described the “clear-error standard” as “deferential.” United States v.
Nkome, 987 F.3d 1262, 1276 (10th Cir. 2021). To satisfy it, Mr. Martinez must leave
us with a “definite and firm conviction that a mistake has been made.” United States
v. Pulliam,
748 F.3d 967, 970 (10th Cir. 2014) (quoting Manning v. United States,
146 F.3d 808, 812 (10th Cir. 1998)). Conversely, “[i]f the ‘court’s account of the
evidence is plausible in light of the record viewed in its entirety,’ we may not reverse
it even if we might have weighed the evidence differently.” Nkome,
987 F.3d at 1277
(alteration in original) (quoting United States v. Piper,
839 F.3d 1261, 1271 (10th
Cir. 2016)). “Where there are two permissible views of the evidence, the factfinder’s
choice between them cannot be clearly erroneous.” Anderson v. City of Bessemer
City,
470 U.S. 564, 574 (1985).
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III. DISCUSSION
Mr. Martinez argues that the district court judge abused his discretion in three
ways: (1) by basing his denial of Mr. Martinez’s motion to dismiss under the Speedy
Trial Act on a clearly erroneous interpretation of the facts; (2) by admitting unduly
prejudicial evidence related to SNM-backed murders when Mr. Martinez conceded in
his opening statement that SNM murdered law enforcement cooperators and those it
perceived to be threats as part of its criminal enterprise; and (3) by failing to sua
sponte recuse himself after hearing testimony that purportedly connected Mr.
Martinez to violent threats against the district court judge himself. We offer
additional background information regarding each of Mr. Martinez’s appellate
challenges before discussing the substantive legal frameworks governing his claims.
After fully exploring his arguments, we conclude that the district court did not abuse
its discretion.
A. The Speedy Trial Act Claim
1. Factual Background
a. Mr. Martinez’s Motion to Sever and the Government’s
First Motion to Continue
On October 16, 2019, a federal grand jury returned an indictment against Mr.
Martinez that alleged he knowingly possessed a firearm and ammunition as a
convicted felon. The district court initially scheduled Mr. Martinez’s trial for
December 16, 2019. On December 11, 2019, fifty-six days after the initial
indictment’s filing, the grand jury returned a Superseding Indictment. The
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Superseding Indictment charged Mr. Martinez with one count of racketeering
conspiracy and re-alleged the existing felon-in-possession allegation.
The day after the grand jury returned the Superseding Indictment, Mr.
Martinez moved to sever the charges in anticipation of the December 25, 2019,
Speedy Trial Act deadline for his felon-in-possession charge. In that motion, Mr.
Martinez urged that separate trials were necessary to ensure compliance with the
Speedy Trial Act. More specifically, Mr. Martinez argued that the Superseding
Indictment’s addition of the racketeering conspiracy charge created an untenable
conflict between two of the Speedy Trial Act’s guarantees: on the one hand, the
Speedy Trial Act entitled him to a trial on his felon-in-possession charge within
seventy days of indictment and, on the other hand, it shielded him from going to trial
on the racketeering conspiracy charge with fewer than thirty days to prepare a
defense. Accordingly, severance was necessary because the felon-in-possession
charge’s Speedy Trial clock was scheduled to run on December 25, 2019. Mr.
Martinez also emphasized the completion of discovery as to the felon-in-possession
charge and his counsel’s diligent preparation relating to, and readiness to defend, that
charge. Lastly, he argued that he would suffer prejudice if the government was
unable to secure its witnesses—many of whom had citations for failing to appear—
for a rescheduled trial date. The government, meanwhile, filed an opposed motion to
continue a joint trial.
The district court held a two-day pre-trial conference starting on December 12,
2019, the same day that Mr. Martinez moved to sever the charges. Of relevance here,
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two issues occupied the district court’s attention during the conference: (1) whether
the court should sever the felon-in-possession count from the racketeering conspiracy
count so that the felon-in-possession count could be tried without violating the
Speedy Trial Act; and (2) whether it should grant the government’s opposed motion
to continue the December 16, 2019, trial date because it needed “to disclose
discovery on the racketeering charge to defense counsel that . . . [was] approximately
ninety thousand pages.” R., Vol. 1, at 54 (Mot. to Continue Trial, filed Dec. 12,
2019) (hereinafter the “First Motion to Continue Trial”).
The next day, the court denied Mr. Martinez’s Motion to Sever but
nevertheless expressed concern “that the felon in possession [charge] might well be
subject to a motion to dismiss on Speedy Trial Act grounds.” Id., Vol. 4, at 105–06
(Pretrial Conf. Tr., Vol. 2, dated Dec. 13, 2019). Indeed, it expressly noted that “the
Government should be forewarned that I may end up dismissing [the felon-in-
possession charge because of the] Speedy Trial Act.” Id. at 115. In that vein,
following its decision to deny the Motion to Sever, the court asked the government if
it still wished to proceed with a joint trial; in so doing, the court noted that it was
“aiming toward dismissing . . . the felon in possession [charge] for lack of speedy
trial.” Id. The government decided to continue forward with a joint trial.
The district court then asked for Mr. Martinez’s position regarding the
government’s First Motion to Continue. Mr. Martinez responded:
[T]o clarify our position on the Government’s motion to continue,
I thought that we made it pretty exceptionally clear that our first
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preference is to try a severed felon-in-possession case next week.
I do think we’ve been pretty repeatedly clear on that point.
But at the hearing yesterday, . . . the position we were taking
. . . was that our second preferred position was to just go ahead and
try a joined felon-in-possession/RICO case, and then our third
position was to continue the entire trial.
. . . . If we have to try a joined trial, we need a continuance.
Id. at 142. In other words, and consistent with his Motion to Sever, Mr. Martinez did
not “consent to a continuance of the felon-in-possession trial” but agreed that a
thirty-day continuance was necessary if he was “forced to have a joint trial”—viz., if
the district court denied his Motion to Sever. Id. at 144.
b. The District Court’s Order Continuing Trial
Ultimately, on December 13, 2019, in an oral order, the court granted the
government’s First Motion to Continue over Mr. Martinez’s objection. It found that
“granting a continuance [would] strike a proper balance between the ends of justice
and the best interests of the public and of the Defendant,” and noted that Mr.
Martinez “represented” needing at minimum thirty days to prepare for trial if his case
was tried on both counts. Id., Vol. 1, at 71 (Order, filed Dec. 13, 2019) (hereinafter
the “Oral Order Continuing Trial”). In that regard, the district court concluded that
“continuing disclosure of discovery[] outweigh[ed] the Defendant’s and the public’s
interest in a speedy trial.” Id.
c. The Court Declares the Case Complex
On January 9, 2020, the grand jury returned the Second Superseding
Indictment. The Second Superseding Indictment included the VICAR charge
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stemming from Mr. Martinez’s alleged participation in the murder of David Romero,
as well as a charge of witness tampering stemming from a threat to a government
cooperator. On the parties’ joint motion, the district court declared the case complex
because the VICAR charge was death eligible—which necessitated appointment of
learned counsel and a mitigation investigation—and also vacated the trial setting. In
declaring the case complex, the district court excluded “all of the time from the filing
of the Motion to Declare the Case Complex until the beginning of the jury trial . . .
for the purposes of the Speedy Trial Act, and [noted that] the ends of justice in
granting the [government’s first motion to continue] outweigh the best interests of the
public and the defendant in a speedy trial.” Id. at 139 (Mem. Op. & Order, dated Jan.
27, 2021).
d. The Government’s Second Motion to Continue
On January 10, 2020, the government filed a second motion to continue. See
United States v. Martinez, Crim. No. 19-3725 JB, ECF No. 59 (Second Mot. to
Continue Trial, filed Jan. 10, 2020). That motion stated that “[d]efense counsel for
the Defendant does not oppose this motion,” but noted for preservation purposes, that
“[t]he Defendant clarifies that he consents to a continuance of the VICAR, RICO
conspiracy, and witness tampering charges,” and that “[t]he Defendant continues to
maintain his position that the felon-in-possession charge should be severed, so he
does not consent to a continuance on that count.” Id. at *3 & n.1. The district court
granted this motion, too.
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e. Mr. Martinez’s Speedy Trial Act Motion to Dismiss
On January 19, 2021, Mr. Martinez filed a motion to dismiss the felon-in-
possession count under the Speedy Trial Act, urging that the Speedy Trial clock for
the felon-in-possession charge ran in December of 2019. Mr. Martinez argued that
“while the Government’s ability to supersede [an indictment] is nearly unlimited,
they do have to be prepared to stay on their pre-assigned timeline if that’s what the
defense wants, as ‘the filing of a superseding indictment does not reset the speedy-
trial clock for offenses charged . . . in the original indictment.’” R., Vol. 1, at 92
(Def.’s Opposed Mot. to Dismiss Count 4 of the Indictment for Speedy Trial Act
Violations, filed Jan. 19, 2021) (hereinafter the “Speedy Trial Motion to Dismiss”)
(quoting United States v. Rushin, 642 F.3d 1299, 1305 n.6 (10th Cir. 2011)).
“Were it otherwise,” Mr. Martinez suggested, “the Government could charge a
defendant and hold him in captivity based on nothing more than probable cause, and
then avoid ever having to bring the case to trial by simply superseding the indictment
to add some new charge every time the case got close to trial.” Id. He added that
“this approach would be limited only by the number of offenses in Title 18 that the
Government, presenting ex parte, could convince a grand jury to indict a given
defendant on, which is about as meaningful a limitation as saying that every forced
continuance of a ham sandwich’s trial must be supported by some new culinary
criticism of the ham sandwich as a dish.”
Id.
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f. The District Court’s Speedy Trial Order
On January 27, 2021, the district court issued a written memorandum opinion
and order formally denying Mr. Martinez’s Motion to Sever and memorializing its
December 13, 2019, Oral Order Continuing Trial, in which it ruled that no Speedy
Trial Act violation occurred. The court concluded that the Speedy Trial clock “(a)
did not expire by the time the Court heard and orally denied [Mr. Martinez’s] Motion
[to Sever]; and (b) has not been violated, because, although the First Superseding
Indictment d[id] not reset the Speedy Trial Act clock for the felon-in-possession
charge, the pretrial motions [i.e., the government’s First Motion to Continue] tolled
the Speedy Trial Act clock; the Court granted two continuances; and the Court
declared the case complex.” R. Vol. 1, at 111–12 (Mem. Op. & Order, filed Jan. 27,
2021) (hereinafter the “Speedy Trial Order”).
More specifically, the district court concluded that the Speedy Trial clock for
Mr. Martinez’s felon-in-possession charge had not expired because:
(i) the Speedy Trial Act clock had not expired at the time that the
Court heard and orally denied [Mr. Martinez’s] Motion [to Sever];
(ii) the Speedy Trial Act clock has never expired; (iii) the Motion
[to Sever] tolled the Speedy Trial Act clock for one day, . . . ; (iv)
the Court granted a thirty-day and then a ninety-day continuance
under 18 U.S.C. § 3161(h)(7) before trial was scheduled to take
place; (v) the Joint Motion to Declare the Case Complex tolled the
Speedy Trial Act for seven days, . . . ; and (vi) the Court declared
the case complex on the parties’ joint motion removing the
seventy-day Speedy Trial Act clock restrictions . . . .
Id. at 168–69 (citations omitted).
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Later, when discussing its denial of Mr. Martinez’s Motion to Sever, the court
observed that “[Mr.] Martinez did not oppose the [government’s First] Motion to
[C]ontinue [Trial].” Id. at 169. “Consequently,” the court explained, it “orally
granted the United States’ Motion to Continue Trial for thirty days on both counts”
under the Speedy Trial Act’s ends-of-justice provision.
Id. at 169–70.
The court emphasized that the Speedy Trial clock had not expired at the time it
heard—and orally denied—Mr. Martinez’s Motion to Sever. In fact, in the court’s
view, the Speedy Trial “clock ha[d] never expired,” as the “Motion [to Sever] tolled
the . . . clock for one day,” then the court granted, first, a thirty-day and then a
ninety-day continuance before trial was scheduled to take place. Id. at 168.
Afterwards, “the Joint Motion to Declare the Case Complex tolled the Speedy Trial
Act clock for seven days,” at which point the court’s declaration that the case was
complex “remov[ed] the seventy-day Speedy Trial Act restrictions.”
Id. at 168–69.
Elaborating on the tolling periods, the district court recognized that by the “time that
[Mr.] Martinez filed the Motion [to Sever], thirteen days remained on the Speedy
Trial Act clock, because no pretrial motions had been filed and fifty-seven days had
elapsed.”
Id. And, because the court orally denied Mr. Martinez’s Motion to Sever
on December 13, 2019, in its Oral Order Continuing Trial the “clock was . . . tolled
for one day.”
Id.
Then—critically, for the purposes of this appeal—the court explained that after
it “orally denied the Motion [to Sever], [Mr.] Martinez did not oppose the
[government’s] Motion to [C]ontinue.” Id. Mr. Martinez contends that this
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conclusion was factually mistaken—and that the court relied on it when denying his
Speedy Trial Motion to Dismiss.
Despite the court’s Speedy Trial Order, Mr. Martinez submitted a reply brief
regarding his Speedy Trial Motion to Dismiss, noting that “[t]he Court was right
before, but is wrong now, in its Speedy Trial Act analysis.” Id. at 223 (Def.’s Reply
in Sup. of his Mot. to Dismiss for Speedy Trial Act Violations, filed Feb. 16, 2021).
Specifically, Mr. Martinez argued that:
[i]f the addition of the RICO count to the previously single-count
felon-in-possession indictment did not reset the Speed Trial clock
as to the felon-in-possession count—and the [c]ourt rightfully
determined that it did not—then either the felon in possession
count must be tried (alone or joined with the new charge) before
its Speedy Trial clock expires, or there must be some basis for
tolling (i.e., “excluding” time from) the felon-in-possession
Speedy Trial clock, and that basis must arise from the felon-inpossession charge, not merely from its joinder with the new RICO
charge; otherwise, the determination that the superseding
indictment did not reset the clock for the felon-in-possession
charge would be illusory.
Id. That is, in district court, Mr. Martinez asserted that the Superseding Indictment’s
inclusion of a racketeering conspiracy charge could not contribute to the court’s
assessment of whether to toll the Speedy Trial clock as to his felon-in-possession
charge. In that vein, Mr. Martinez observed that no party had argued that a single-
count felon-in-possession trial justified an ends-of-justice continuance or any other
exclusion from the Speedy Trial Act: “counsel were fully prepared for the trial, the
charge wasn’t and isn’t complex, it wasn’t tolled by more than a day due to pretrial
motions (as the Court agreed in its [order]), and it didn’t require examination[s] to
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determine the mental competency or involve interlocutory appeals or inter-District
prisoner transport or any other statutory bases for tolling.” Id. at 227 (internal
quotations omitted).
Finally, Mr. Martinez challenged the district court’s conclusion that he
consented to any motions to continue as applied to the felon-in-possession count,
noting that he only discussed potential remedies related to the government’s First
Motion to Continue—for example, the amount of time necessary to prepare a joint
trial if the matter was continued—but consistently maintained that he did not wish to
enlarge the Speedy Trial Act deadlines for the felon-in-possession charge. Because
there was no justification for an ends of justice continuance, and because Mr.
Martinez did not consent to any extension of the Speedy Trial clock deadlines, Mr.
Martinez asked that the felon-in-possession count be dismissed prior to trial.
2. Legal Framework
“The Speedy Trial Act requires that a federal criminal trial commence within
seventy days of the filing of the indictment or the defendant’s initial appearance,
whichever occurs later.” Banks, 761 F.3d at 1175. “The Act excludes from this
seventy-day period, inter alia, ‘[a]ny period of delay resulting from a continuance
. . . if the judge granted such a continuance on the basis of his findings that the ends
of justice served by taking such action outweigh the best interest of the public and the
defendant in a speedy trial.’”
Id. (quoting
18 U.S.C. § 3161(h)(7)(A)). “A court is
required to set forth on the record, either orally or in writing, its reasons for making
such a determination.”
Id. That said, we have cautioned an ends-of-justice
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continuance is “meant to be a rarely used tool for those cases demanding more
flexible treatment,” United States v. Toombs, 574 F.3d 1262, 1269 (10th Cir. 2009)
(quoting United States v. Doran,
882 F.2d 1511, 1515 (10th Cir. 1989)), and “should
not be granted cavalierly,” United States v. Williams,
511 F.3d 1044, 1049 (10th Cir.
2007).
In determining whether to grant an ends-of-justice continuance, the district
court must consider the factors listed in 18 U.S.C. § 3161(h)(7)(B). These factors
include:
(i) Whether the failure to grant such a continuance in the proceeding
would be likely to make a continuation of such proceeding
impossible, or result in a miscarriage of justice[;]
(ii) Whether the case is so unusual or so complex, due to the number
of defendants, the nature of the prosecution, or the existence of
novel questions of fact or law, that it is unreasonable to expect
adequate preparation for pretrial proceedings or for the trial itself
within the time limits established by this section[;]
....
(iv) Whether the failure to grant such a continuance in a case which,
taken as a whole, is not so unusual or so complex as to fall within
clause (ii), would deny the defendant reasonable time to obtain
counsel, would unreasonably deny the defendant or the
Government continuity of counsel, or would deny counsel for the
defendant or the attorney for the Government the reasonable time
necessary for effective preparation, taking into account the
exercise of due diligence.
18 U.S.C. § 3161(h)(7)(B).
“If the district court fails to consider [the Speedy Trial Act factors], the
continuance period cannot be excluded under the Act’s ends-of-justice provision.”
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Banks, 761 F.3d at 1176 (quoting United States v. Larson,
627 F.3d 1198, 1204 (10th
Cir. 2010)). “[T]he record must clearly establish [that] the district court considered
the proper factors at the time such a continuance was granted.” Larson,
627 F.3d at
1204 (alterations in original) (quoting Toombs,
574 F.3d at 1268). If a defendant is
not brought to trial within the time limits of the Speedy Trial Act, the indictment
shall be dismissed on the defendant’s motion. See Rushin,
642 F.3d at 1303 (citing
18 U.S.C. § 3162(a)(2)). Importantly, “the filing of a superseding indictment does
not . . . toll the speedy trial clock” for the offense charged in the original indictment.
United States v. Apperson,
441 F.3d 1162, 1181 (10th Cir. 2006).
3. Analysis
In assessing Mr. Martinez’s Speedy Trial Act challenge, it is helpful to
understand, in the first instance, what he does not argue. He does not argue—as he
did in district court—that a superseding indictment entitles a defendant to a severance
whenever the speedy-trial clock on an older charge would run before a joint trial can
be held or, relatedly, that the basis for any Speedy Trial tolling must originate with
the felon-in-possession charge. Nor does he contend that the court abused its
discretion in denying his Motion to Sever. Moreover, he does not (at least in his
Opening Brief) suggest that the court erred, as a matter of law, in concluding that any
acquiescence to a 30-day continuance prompted by the addition of the racketeering
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conspiracy charge was legally sufficient to create an ends-of-justice continuance for
his felon-in-possession charge.4
Rather, at bottom, Mr. Martinez’s speedy trial challenges presented in his
Opening Brief are predicated on three modest propositions: (1) the court clearly erred
4
Mr. Martinez floats additional arguments in his Opening and Reply
Briefs. More specifically, in his Opening Brief, Mr. Martinez vaguely targets in a
stray, single sentence the legal sufficiency of “the trial court’s December 13, 2019,
continuance,” which he avers “did not serve the ends of justice as to the felon-inpossession charge, and . . . did not operate to exclude time from the felon in
possession charge’s Speedy Trial clock.” Aplt.’s Opening Br. at 34. Relatedly, in
his Reply Brief, he argues that the district court’s conclusion that discovery needs
supported a continuance was “[in]sufficient” because “the record shows that the
government superseded [the indictment] to delay trial on the felon-in-possession
charge rather than to complete discovery.” Aplt.’s Reply Br. at 2. And—also in his
Reply Brief—he resurrects a concern that he raised in district court: “whether the
government could evade the time limits of the Speedy Trial Act by filing a
superseding indictment days before trial, force a continuance, and then assert that a
superseding indictment tolls the clock for all charges included in a previous
indictment.” Id. at 5.
Each of these arguments is waived under our briefing-waiver doctrine. “[W]e
generally do not consider arguments made for the first time on appeal in an
appellant’s reply brief,” as doing so “‘would be manifestly unfair to the appellee
who, under our rules, has no opportunity for a written response.’” United States v.
Leffler, 942 F.3d 1192, 1197 (10th Cir. 2019) (quoting Hill v. Kemp,
478 F.3d 1236,
1251 (10th Cir. 2007)). This means that appellants must raise their arguments in
their opening brief. See Bronson v. Swensen,
500 F.3d 1099, 1104 (10th Cir. 2007)
(noting that “we routinely have declined to consider arguments that are not raised . . .
in an appellant’s opening brief”). But it is not enough for an appellant to raise
arguments there in a “perfunctory manner,” United States v. Walker,
918 F.3d 1134,
1151 (10th Cir. 2019) (quoting United States v. Wooten,
377 F.3d 1134, 1145 (10th
Cir. 2004)), or through “scattered sentences” that fail to “‘indicate[] . . . appellant’s
contentions and the reasons for them,’” United States v. Fisher,
805 F.3d 982, 991
(10th Cir. 2015) (quoting 10TH CIR. R. 28(a)(8)). Such arguments are “inadequately
presented” and we deem them waived. Bronson,
500 F.3d at 1104. Thus, Mr.
Martinez’s alternative arguments—floated, first in cursory fashion in his Opening
Brief and then developed in his Reply Brief—are the very kind of “inadequately
presented” theories we traditionally deem waived.
Id.
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when it claimed in its Speedy Trial Order that he did not oppose the government’s
First Motion to Continue Trial; (2) the court relied on that mischaracterization in
finding that the ends of justice merited a continuance under § 3161(h); and (3) the
court’s reliance on a clearly erroneous factual finding effected an abuse of discretion.
As such, he claims that “there was not a sufficient record establishing that an ends of
justice continuance was necessary” because the factual basis for the district court’s
order was clearly erroneous. Aplt.’s Opening Br. at 34; see also id. at 35 (“Relying
upon this statement to find that the ends of justice merited a continuance that tolled
the Speedy Trial clock was clear error.”). And, in the absence of such a record, the
district court’s “holding of a trial for [the felon-in-possession] charge . . . violated the
Speedy Trial Act.” Id. at 27.
The government responds by arguing that “[t]here is nothing misleading, let
alone clearly erroneous, about the court’s observation that ‘[a]fter the Court orally
denied [Mr. Martinez’s] Motion [to Sever], [Mr.] Martinez did not oppose the
[government’s] Motion to [C]ontinue.’” Aplee.’s Resp. Br. at 20 (quoting Speedy
Trial Order, R., Vol. 1, at 169). Certainly, the government contends, Mr. Martinez
“has pointed to nothing in the record that could leave [us] with a ‘definite and firm
conviction that a mistake has been made.’” Id. (quoting Pulliam, 748 F.3d at 970).
In our view, the government has the better of this dispute, and we accordingly
reject Mr. Martinez’s narrow challenge predicated on the district court’s ostensible
factual error. When read against the “record . . . in its entirety,” Nkome, 987 F.3d at
1277 —including the procedural background of Mr. Martinez’s case and his
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representations during the pre-trial conference—the district court’s statement that Mr.
Martinez “did not oppose” the government’s First Motion to Continue Trial is best
understood as an acknowledgment by the court that Mr. Martinez consented to a
continuance upon condition of the court’s denial of his Motion to Sever. R., Vol. 1,
at 169. That is, the court’s Speedy Trial Order reflects Mr. Martinez’s position that
he opposed the government’s First Motion to Continue Trial as part and parcel of his
efforts to sever the racketeering conspiracy and felon-in-possession charges but, to
the extent that the court denied his Motion to Sever, he acknowledged needing time
to prepare for the joint trial. See Piper, 839 F.3d at 1271.
Because, at the very least, this “‘account of the evidence is plausible,’” id.
(quoting Anderson,
470 U.S. at 574), the district court’s “finding survives scrutiny
and is not reversible,” United States v. Ellis,
23 F.4th 1228, 1247 (10th Cir. 2022).
Consider, first, the procedural backdrop against which the district court made its
findings and that, in turn, illuminates Mr. Martinez’s conditional consent to an ends-
of-justice continuance under the Speedy Trial Act.
The Speedy Trial Order expounded upon, and memorialized, the court’s
December 13, 2019, oral ruling denying Mr. Martinez’s Motion to Sever. The
resolution of the Motion to Sever was inextricably tied to Mr. Martinez’s position on
the government’s First Motion to Continue. After all, the basis of Mr. Martinez’s
Motion to Sever was his readiness to proceed to trial on the felon-in-possession
charge. Assenting to the government’s First Motion to Continue prior to the district
court’s adjudication of the Motion to Sever would directly undercut Mr. Martinez’s
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efforts to sever the felon-in-possession charge from the racketeering conspiracy
charge—as the First Motion to Continue sought to give the parties sufficient time to
try both charges together. In other words, Mr. Martinez was not in a strategic
position to consider agreeing to any additional time that the government sought in the
First Motion to Continue so long as his Motion to Sever remained viable and the
court had not denied it. Accordingly, it is no wonder then that, in its Speedy Trial
Order, the district court emphasized that the “primary issue” before it was whether it
“should sever [Mr.] Martinez’s felon-in-possession of a firearm charge from his
racketeering conspiracy charge.” R., Vol. 1, at 111.
Mr. Martinez’s oral representations to the district court reflect this
understanding by him of the connection between the severance and continuance
issues. As Mr. Martinez explained during the December 13th hearing, the Motion to
Sever needed to be “resolved” before he could fully stake a position on the
government’s First Motion to Continue. Id., Vol. 4, at 100. The district court also
understood the interplay between the parties’ competing motions. Anticipating its
denial of Mr. Martinez’s Motion to Sever during the December 13th hearing, the
court inquired whether a thirty-day continuance would afford Mr. Martinez sufficient
time to prepare a defense. Mr. Martinez underscored that though he was “not
waiving anything on [his] severance issue” and did not “consent to a continuance of
the felon-in-possession trial,” “30 days . . . [was an] appropriate” amount of time to
prepare a defense “if [he was] forced to have a joint trial.” Id. at 144; see also id.
(representing to the district court that thirty days is “the minimum time [Mr.
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Martinez] need[ed] to prepare for trial”); id. at 143 (“And we thought that for a RICO
case, a 30-day continuance made sense on the RICO [charge] for us to get the
discovery . . . .”).
Indeed, Mr. Martinez explained that, though his “first preference [was] to try a
severed felon-in-possession case” at the initially scheduled trial date, his “second
preferred position was to . . . try a joined felon-in-possession/[racketeering
conspiracy] case” on the initial trial date. Id. at 142. Mr. Martinez’s second
preferred position proved impossible due to the voluminous discovery the
government needed to disclose; to proceed to trial without affording Mr. Martinez’s
counsel an appropriate amount of time to review the 90,000 pages of discovery in the
government’s possession would severely limit counsel’s ability to render effective
assistance. Therefore, Mr. Martinez conceded that his “third position was to continue
the entire trial.” Id.
These exchanges make clear that Mr. Martinez agreed to the continuance
insofar as the court denied his Motion to Sever and did not consent to the
continuance insofar as the court might grant his Motion to Sever.5 To be sure, even
the government acknowledges that Mr. Martinez “could not have made it more
apparent that he . . . did not consent to a continuance of [the felon-in-possession]
count.” Aplee.’s Resp. Br. at 20. And we acknowledge that, if read in isolation, the
district court’s statement that “[Mr.] Martinez did not oppose the [government’s]
5
As noted, supra, Mr. Martinez does not argue on appeal that the district
court erred in denying his Motion to Sever.
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Motion to [C]ontinue,” is technically incorrect. R., Vol. 1, at 169. However, we “do
not read particular statements of the district court in isolation.” Ellis, 23 F.4th at
1244. Returning to the Speedy Trial Order, the district court quoted most of Mr.
Martinez’s representations that, though not his first choice, he would need a thirty-
day runway to prepare if forced into a joint trial. It is implausible that the district
court misinterpreted Mr. Martinez’s position so shortly after his explicit opposition to
the government’s First Motion to Continue.
The Speedy Trial Order reflects that the district court initially continued the
joint trial for 30 days, owing to the government’s need to disclose some 90,000 pages
of discovery related to the racketeering conspiracy charge before trial, and Mr.
Martinez’s admitted need for additional time to prepare for a joint trial—even though
he had sought to avoid a joint trial. See R., Vol. 1, at 169–70 (“Consequently, the
Court then orally granted the United States[’] Motion to Continue . . . for thirty days
on both counts under 18 U.S.C. § 3167(h)(7) . . . .”); see also
18 U.S.C.
§ 3161(h)(7)(B)(iv) (“Whether the failure to grant such a continuance in a case . . .
would deny counsel for the defendant or the attorney for the Government the
reasonable time necessary for effective preparation. . . .”). Thus, read in the proper
context, the Speedy Trial Order’s statement that Mr. Martinez “did not oppose,” R.,
Vol. 1, at 169, the government’s Motion to Continue—at the very least—is “plausible
in light of the record viewed in its entirety,” Anderson,
470 U.S. at 574.
Mr. Martinez fails to cite any case in which we have found clear error under
analogous circumstances. Accordingly, we cannot say that the district court clearly
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erred. And, in the absence of clear error, we cannot agree with Mr. Martinez’s
narrow, fact-based argument that the district court abused its discretion. See United
States v. Watson, 766 F.3d 1219, 1234 (10th Cir. 2014). We thus affirm.
B. The Cumulative and Prejudicial Murder Testimony
Mr. Martinez next argues that the district court abused its discretion when it
admitted “enterprise evidence” consisting of SNM-ordered murders unrelated to him
after he “explicit[ly] conce[ded] . . . the criminal enterprise element.” Aplt.’s
Opening Br. at 28. Specifically, he claims that the admission of this evidence
violated Federal Rule of Evidence 403. We provide the factual background pertinent
to Mr. Martinez’s Rule 403 claim and then discuss the applicable legal framework.
We conclude that the district court did not abuse its discretion, as the probative value
of the evidence exceeded its prejudicial effect.
1. Factual Background
a. Mr. Martinez’s Motion in Limine and the District
Court’s Oral Ruling
Prior to trial, Mr. Martinez filed a motion in limine seeking to exclude
“evidence regarding murders allegedly carried out by SNM members, violent attacks
carried out by SNM members, and the alleged SNM plan to assassinate [] former”
New Mexico Corrections Department officials. R., Vol. 1, at 211 (Def.’s Mot. in
Lim. to Exclude Evid. of Unrelated Violent Crimes as Enter. Evid., filed Feb. 16,
2021). More specifically, through that motion, Mr. Martinez sought to exclude at
trial any evidence related to the murders of Frank Castillo, Rolando Garza, Freddie
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Sanchez, Javier Molina, Leroy Lucero, Adrian Burns, and Shane Dix, the attacks on
Julian Romero and Jose Gomez, and an alleged conspiracy to murder Gregg
Marcantel and Dwayne Santistevan of the New Mexico Corrections Department, all
of which were violent crimes that served as the basis for charges in other SNM trials
and cases, and none of which involved Mr. Martinez. Mr. Martinez premised his
motion on Rule 403, arguing that “[a]dmitting into evidence the alleged murders,
violent attacks, and alleged assassination plot . . . would result in an exceptionally
high risk that Mr. Martinez [will] be convicted because the jury believes that he, and
all alleged SNM members, are the types of persons who would commit murder,”
rather than for a proper purpose. Id. at 221.
The district court granted in part and denied in part the motion. “[T]o limit the
amount of time . . . spen[t] on violence,” the court decided that if Mr. Martinez
conceded in his opening statement that SNM is a racketeering enterprise engaged in
murder, witness intimidation, and drug trafficking, then the court would limit the
government to presenting evidence of three unrelated murders or attempted assaults
as racketeering evidence. Id., Vol. 4, at 208–09 (Trial Tr., Vol. 1, dated Mar. 1,
2021). In response, the government sought clarification as to whether it could
“mention . . . other murders” for “explanation purposes,” to which the court
elaborated that its three-murder rule did not preclude the government from referring
to other murders, as doing so might be necessary for witnesses’ testimony. Id. at
209. Nevertheless, the court advised that if the government was “getting into so
many murders,” Mr. Martinez could rightfully object. Id.
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b. Mr. Martinez’s Opening Statement
Following this ruling, Mr. Martinez explicitly conceded in his opening
statement that SNM engaged in racketeering activity:
We don’t dispute any of the following. SNM exists. It’s a prison
gang. And it’s an enterprise under the meaning of [RICO] . . . . As
an enterprise, it affects interstate commerce, and through its
members it does engage in drug trafficking. That’s their primary
activity . . . . When anything threatens that, they’ve been known to
threaten and sometimes attack snitches. Murder typically in the
same vein, they’ll engage in murder of cooperators or whoever else
crosses them one way or the other.
Id. at 639 (Trial Tr., Vol. 2, dated Mar. 2, 2021).
In light of this concession, the government asked the district court to confirm
directly with Mr. Martinez that he agreed to his counsel’s decision not to contest
certain elements of the racketeering conspiracy charge. The court agreed, and
explained to Mr. Martinez, personally:
I told your counsel and told the government that if you’ll not
contest—because the government won’t stipulate to it; but if
you’re not going to contest the enterprise, that SNM is an
enterprise and that they commit racketeering acts and murder and
witness-tampering and those sort of things—if they’re willing to
not contest those, so they become sort of phantom issues in here;
there are still issues the [g]overnment has to prove beyond a
reasonable doubt, because they’re not stipulating to it. But if
you’re willing to not contest that and fight those, and those are
more phantom issues, then I’m going to put pressure on the
government to cut the case down, not have as many murders in this
case, not have as many racketeering activities. And I told [the
government] they can have three murders and then there are at least
some murders that will come up with individual witnesses.
Id. at 648–49. Mr. Martinez confirmed that he understood and agreed with what his
lawyer was doing.
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c. The District Court’s Clarification
The next day, the government advised the district court that its first witness,
Jerry Roark from the New Mexico Corrections Department, would “mention” but not
discuss in detail the 2014 murder of Javier Molina, an individual killed at the hands
of SNM, and an additional two murders dating back to 2001. Id. at 656. The
government’s notice prompted Mr. Martinez to seek clarification as to the scope of
the court’s Rule 403 ruling. Specifically, Mr. Martinez asked whether the court
would allow “any witness . . . to talk about any murder that they participated in, and
then the government could bring in the three additional murders[?]” Id. at 657. The
court responded that it did not “want to hear multiple witnesses on a [murder] unless
it’s one of those three” that the government could use as racketeering evidence. Id.
To the extent the government could discuss additional murders, the court advised that
its witnesses’ testimony would be limited to “prov[ing] up . . . little murders to try to
give some color” to other aspects of the witness testimony. Id. Notably, however,
the court prohibited the government from “prov[ing] [up] every [murder] . . .
mentioned” by its witnesses. Id. Should the government solicit “all the details about
[the mentioned murder],” the court advised that it would be “receptive to an
objection.” Id. at 658.
d. The Murder Testimony
Mr. Martinez complained of enterprise-murder testimony offered by the
following witnesses: Mr. Roark, FBI Special Agent Bryan Acee, SNM-member
Mario Rodriguez, and SNM-member Roy Martinez.
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i. Mr. Roark
Mr. Roark first testified regarding the history of the SNM, during which he
discussed a 2001 double murder at the Southern New Mexico Correctional Facility
and the 2014 murder of Javier Molina. According to Mr. Roark, the double murder
occurred on the same day and both victims were members of SNM. Mr. Roark also
described the locations of the murders—prison cell blocks—before briefly discussing
the 2014 murder of Javier Molina, another member of SNM.6
6
Mr. Martinez did not contemporaneously object to this testimony.
Immediately prior to the commencement of Mr. Roark’s direct examination, he
sought “to clarify” the Court’s Rule 403 ruling. R., Vol. 4, at 657. Mr. Martinez’s
request for “clarification and then [his] explicit decision not to object—upon
receiving the . . . clarifying explanation—suggests that [he] knew [he] had the right
to object and intentionally chose to relinquish it.” In re Syngenta, 61 F.4th 1126,
1220 (10th Cir. 2023) (internal quotations and alterations omitted). Nor does Mr.
Martinez argue that his motion in limine preserved an objection to this testimony.
See United States v. Bedford,
536 F.3d 1148, 1157 (10th Cir. 2008) (“A pretrial
motion in limine to exclude evidence will not always preserve an objection for
appellate review.”) (quoting United States v. Mejia-Alarcon,
995 F.2d 982, 986 (10th
Cir. 1993)). Any such argument would likely be unavailing. Though a “motion in
limine may preserve an objection when the issue . . . can be finally decided in a
pretrial hearing, and . . . is ruled upon without equivocation by the trial judge,” the
district court neither finally nor unequivocally granted—or denied—Mr. Martinez’s
Rule 403 motion. Bedford, 536 F.3d at 1157–58 (quoting Mejia-Alarcon,
995 F.2d at
986). Rather, in relevant part, the court explained that it would have to evaluate Mr.
Martinez’s 403 objections as they arose. Even if we assume (without deciding) that
Mr. Martinez’s conduct did not result in a waiver of objections to Mr. Roark’s
testimony, and he only failed to preserve such objections through inadvertence—i.e.,
forfeited them, see, e.g., In re Syngenta,
61 F.4th at 1180 (describing forfeited
objections as being “thought of as the product of inadvertence or ignorance of a legal
issue”)—Mr. Martinez does not argue plain error on appeal, though he cites to Mr.
Roark’s testimony in his factual background, and that failure is particularly
problematic, if not fatal. See Richison v. Ernest Grp., Inc.,
634 F.3d 1123, 1131
(10th Cir. 2011) (“[T]he failure to argue for plain error and its application on appeal .
. . surely marks the end of the road for an argument for reversal not first presented to
the district court.”).
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As Mr. Roark explained, the 2001 double murder prompted the New Mexico
Department of Corrections to relocate certain SNM members, who were housed in
the Southern New Mexico facility, to other prisons located in the state and classify
them as maximum-security threats under a system first developed in the 1990s. The
New Mexico Department of Corrections has relied on that security threat system, and
the threat-mitigation efforts implemented following the 2001 double murder, to
counter SNM’s organizing efforts from within the state’s prison system.
Importantly for our purposes, on cross-examination, however, Mr. Roark
acknowledged that Mr. Martinez did not in any way participate in those murders.
Mr. Martinez’s failure to argue plain error is not limited to Mr. Roark’s
testimony. As we note, infra, Mr. Martinez failed to object to other portions of
testimony he now argues on appeal prejudiced him. Notably, Mr. Martinez does not
distinguish between the objected-to and unobjected-to testimony in his Opening
Brief, which fails to identify in his analysis section the specific testimony he
contends unduly prejudiced him. See, e.g., Aplt.’s Opening Br. at 36 (“The
enterprise evidence was minimally probative and unfairly prejudicial.” (bold typeface
omitted)).
Ordinarily, Mr. Martinez would not be able to circumvent our plain error
analysis by lumping together forfeited arguments stemming from unobjected-to
testimony with preserved arguments related to objected-to testimony. Cf. Richison,
634 F.3d at 1131. Nevertheless, the government failed to invoke our preservation
doctrine, and thus waived any effective waiver arising from Mr. Martinez’s failure to
argue that his unpreserved errors satisfied our rigorous plain error standard. See
United States v. Rodebaugh,
798 F.3d 1281, 1306 (10th Cir. 2015) (finding that “the
Government . . . clearly waived . . . any objection to [appellant’s] failure to preserve
his lack-of-specific-findings argument” where it “failed to argue [that] [appellant]
had not objected below and had not argued plain error in his opening brief”).
Recognizing that we “are not obliged to apply forfeiture principles to the
government’s briefing omission,” we discern no reason to forgo reviewing Mr.
Martinez’s Rule 403 claim on the merits. United States v. McGehee,
672 F.3d 860,
873 n.5 (10th Cir. 2012).
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And, as the government emphasized in its closing argument, the focus of Mr. Roark’s
testimony was on explaining the development of “SNM’s classification within the
Department of Corrections, [and] how they started a security threat group in the
1990s to gain intelligence and information about gangs in order to address the
problems that the gangs were creating within the prison system.” Id. at 2771 (Trial
Tr., Vol. 11, dated Mar. 15, 2021).
ii. Agent Acee
The government then called FBI Special Agent Bryan Acee, one of the lead
investigators of the cases against SNM. Initially, Agent Acee testified regarding the
murders of Shane Dix; two murders committed by alleged SNM member Edward
Troup; and the murders of Rolando Garza, Frank Castillo, Fred Sanchez, and Adrian
Burns. Mr. Martinez objected to Agent Acee’s testimony, citing Rule 403. The court
sustained the objection, instructing the government to move on because “I think we
got a flavor.” Id. at 731 (Test of FBI Special Agent Bryan Acee) (Trial Tr., Vol. 3,
dated Mar. 3, 2021). Shortly thereafter, when Agent Acee began testifying again
about his investigations into unrelated SNM murders, Mr. Martinez started to object,
and the court instructed the government to finish its question but then “move on.” Id.
at 732.
Later, however, the government asked Agent Acee to identify SNM members
from a photograph. In doing so, he noted which members were charged for certain
crimes. Specifically, he identified the following SNM members, who were either
murdered, or charged with murder or assault: Leroy Lucero, murdered after testifying
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against other SNM members; SNM members Joe Gallegos and Angel DeLeon,
charged with murder; Mauricio Varela, charged with assault; Daniel Sanchez,
convicted of murder; Jerry Montoya, charged with murder; Rudy Salazar, involved in
the murder of David Romero, which was the murder charged in this case; Timothy
Rodriguez, charged with murder; Roy Martinez, charged with conspiracy to murder;
Paul Rivera, charged with assaulting a witness; and Mario Rodriguez, charged with
murder and later cooperated.7 In addition, Agent Acee touched upon the Javier
Molina murder. As he notes in his Opening Brief, Mr. Martinez was not involved
with any of these offenses, a fact that came out on cross-examination. See Aplt.’s
Opening Br. at 13.
iii. Mario Rodriguez
Mr. Martinez renewed his Rule 403 objection regarding enterprise evidence as
it applied to the government’s next enterprise witness, Mario Rodriguez. In that
objection, Mr. Martinez stated:
We’ve now had testimony regarding seven murders from two
witnesses. We spent close to an entire day dealing with this. We’ve
conceded that the SNM committed these murders. We made the
concession that you asked for, Your Honor. They’ve now had a
former deputy director of Corrections and an FBI agent take the
stand talking about the murder of Javier Molina, the murder of
Garza, Castillo, Sanchez, Shane Dix, Adrian Burns, and Robert
Ortega. Talked about how they were committed by SNM
members, how they were committed by the SNM Gang as part of
SNM activities.
At this point, the testimony regarding the enterprise is just
becoming cumulative and prejudicial. To now have [Mario
7
Mr. Martinez did not object to any of this testimony.
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Rodriguez] come [] and testify about the Javier Molina murder
after two witnesses have already testified about it I think is
unnecessary at this point, Your Honor. So, we would ask that Mr.
Rodriguez’s testimony be limited to his knowledge related to this
specific case, and then we move on from this enterprise
[testimony.] It’s conceded, it’s getting cumulative, and frankly, at
this point we’ve hit seven murders, as we’ve talked about
previously, and it’s getting prejudicial, Your Honor.
Id. at 888–89.
The Court overruled the objection and allowed Mr. Rodriguez to testify
regarding his participation in violent activities on behalf of SNM, including the
murder of Javier Molina in a New Mexico prison. Mr. Rodriguez testified that he,
along with several others, participated in the murder of Javier Molina; SNM wanted
him dead over suspicions that he cooperated with law enforcement. Among other
details, Mr. Rodriguez shared that another SNM member, Daniel Sanchez, “called,”
i.e., “order[ed],” the murder. Id. at 917, 919. And, critically, he testified that he had
“no choice” but to follow Daniel Sanchez’s order because, in SNM, “you [follow
orders] or you end up getting killed in the process.” Id. at 923.
iv. Roy Martinez
Mr. Martinez prophylactically renewed his Rule 403 objection prior to Roy
Martinez, another SNM-member-turned-witness, taking the stand. The government
intended for Roy Martinez to testify about two additional murders, as well as a
conspiracy involving Mr. Martinez (i.e., the defendant-appellant) to traffic drugs
within the prison system.
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When soliciting testimony as to Roy Martinez’s criminal history, the
government asked him what he had pleaded guilty to; Roy Martinez answered that he
“ordered a hit on Gregg Marcantel and Santistevan,” two officers within the New
Mexico Department of Corrections. Id. at 970. Mr. Martinez objected, noting that
the hits had not been “carried out” and that the identities of the two correctional
officers were “highly prejudicial.” Id. at 971. He further argued that the evidence as
to SNM’s acts of violence against correctional officers was well-established.
The district court disagreed—at least in part. In its view, the background
information to which Roy Martinez testified was important to building the
government’s witness-tampering case against Mr. Martinez because Roy Martinez
disseminated his orders via a letter addressed to Mr. Martinez. In that regard, the
court observed that the evidence “show[ed] the link between Mr. Martinez and the
SNM and the fact that they would trust him with such an important assignment.” Id.
at 972. Nevertheless, the court partially sustained Mr. Martinez’s objection, allowing
the government to only ask about the letter and that Mr. Martinez never received it.
e. The Limiting Instruction
Mr. Martinez filed a proposed limiting instruction to stymie any prejudice
attending to the witnesses’ testimony. After some discussion and edits from the
parties, the district court gave that instruction, stating:
You have now heard testimony regarding other crimes,
wrongs, or acts that were allegedly committed by Mr. Martinez’s
alleged associates in the SNM. You may consider this evidence
solely for the purpose of determining whether the SNM is an
enterprise engaged in racketeering activity, and whether and how
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the SNM’s racketeering acts tended to form patterns of
racketeering activity. These acts also may themselves constitute a
pattern or several patterns of racketeering activity. I will note that
Mr. Martinez, in his opening argument, conceded that the SNM
was an enterprise affecting interstate commerce, and that the SNM
engages in racketeering acts.
Such acts are not admissible to prove a person’s character
in order to show that on a particular occasion the person acted in
accordance with the character. You may not consider the bad acts
of an SNM member for the purpose of drawing the inference that
if Mr. Martinez associated with such individuals, he must have a
criminal character and must have committed the crimes charged.
You also may not consider the alleged bad acts of Mr.
Martinez himself for the purpose of drawing the inference that Mr.
Martinez’s bad acts in the past mean that he is a person of criminal
or otherwise bad character and that it is thus more likely that he
committed the crimes charged in this case. For the limited purpose
for which this evidence has been received, you may give it such
weight as you feel it deserves. You may not, however, use this
evidence for any other purpose not specifically mentioned.
Id., Vol. 4, at 2689–90.
2. Legal Framework
Under Rule 403 of the Federal Rules of Evidence, district courts must conduct
a balancing test to assess whether a piece of evidence’s “probative value is
substantially outweighed by [the] danger of . . . unfair prejudice.” FED. R. EVID. 403.
In this context, “unfair prejudice” means “an undue tendency to suggest [a] decision
on an improper basis, commonly, though not necessarily, an emotional one.” United
States v. Silva, 889 F.3d 704, 712 (10th Cir. 2018) (alteration in original) (quoting
FED. R. EVID. 403 advisory committee note to 1972 proposed rules). “[A]s to a
criminal defendant, [it] speaks to the capacity of some concededly relevant evidence
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to 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
deciding whether to exclude evidence under Rule 403, ‘consideration should be given
to the probable effectiveness or lack of effectiveness of a limiting instruction” and
‘[t]he availability of other means of proof.’” Silva,
889 F.3d at 712 (alteration in
original) (quoting FED. R. EVID. 403 advisory committee note to 1972 proposed
rules).
“The district court has considerable discretion in performing the Rule 403
balancing test,” but “exclusion of evidence under Rule 403 that is otherwise
admissible under the other rules ‘is an extraordinary remedy and should be used
sparingly.’” United States v. Tan, 254 F.3d 1204, 1211 (10th Cir. 2001) (quoting
United States v. Rodriguez,
192 F.3d 946, 949 (10th Cir. 1999)). The district court
need not expressly state whether “the probative value of the evidence substantially
outweighed its potential for unfair prejudice” where “th[ose] determinations are
supported by the record.” United States v. Lazcano-Villalobos,
175 F.3d 838, 846
(10th Cir. 1999). Finally, “our law favors admission of all relevant evidence not
otherwise proscribed.” United States v. Irving,
665 F.3d 1184, 1213 (10th Cir. 2011).
3. Analysis
Mr. Martinez argues that “the balance tipped so sharply towards exclusion
following [his] concession that the SNM was a criminal enterprise [] that the district
court’s admission of [the enterprise murder] evidence was an abuse of discretion.”
Aplt.’s Opening Br. at 36. That is, “because Mr. Martinez conceded that the SNM
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was a racketeering enterprise that engaged in racketeering activities such as murder,
. . . the evidence of other murders . . . by the SNM had no probative value” and was
severely prejudicial. Id. at 37.
We disagree and conclude that the district court did not abuse its discretion for
two reasons. First, the enterprise-murder evidence had important probative value by
showing that SNM used violence to maintain and augment organizational respect;
such evidence played a critical role in establishing the government’s case on
elements Mr. Martinez did contest, including his participation in the murder of David
Romero. Second, with the assistance of a limiting instruction, this probative value
exceeded any unfair prejudice.
a. Probative Value
Mr. Martinez argues that the evidence lacked probative value for two reasons.
First, he reasons that his trial revolved around whether he “participated in the [David]
Romero murder, and other racketeering activity, . . . not . . . whether the SNM was a
racketeering enterprise in general.” Id. at 38–39. So, Mr. Martinez maintains that his
concession of the enterprise element significantly diminished the probative value of
the evidence. In furthering this argument, he invokes our decisions in United States
v. Becker, 230 F.3d 1224 (10th Cir. 2000), abrogated in part on other grounds by
Crawford v. Washington,
541 U.S. 36 (2004), United States v. Soundingsides,
820
F.2d 1232 (10th Cir. 1987), and United States v. Edwards,
540 F.3d 1156 (10th Cir.
2008)—as well as a Tenth Circuit panel’s decision in United States v. Moncayo, 440
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F. App’x 647 (10th Cir. 2011)—for the proposition that a defendant’s concession of
an element deprives evidence concerning that element of its probative value.
Second, and relatedly, Mr. Martinez argues that the enterprise murder evidence
was “wholly separate and distinct from the [David] Romero murder charged in this
case.” Aplt.’s Opening Br. at 38. In that regard, many of the murders occurred either
several years before or after the 2008 murder of David Romero. Thus, Mr. Martinez
urges that these murders “hardly” established that “the SNM was engaged in
racketeering activity in 2008—or, for that matter, that Mr. Martinez was active in the
SNM in 2001 or 2014,” when some of the murders took place. Id. That is, in Mr.
Martinez’s view, the murders were so temporally disconnected from his alleged
murder of David Romero that they lacked probative force concerning the elements of
that alleged murder.
For its part, the government emphasizes that none of these cases that Mr.
Martinez cites involved racketeering charges. Moreover, the government responds
that the jury “had to find that [SNM] had three structural features: (1) a purpose; (2)
relationships among those associated with the enterprise; and (3) longevity sufficient
to permit [its] associates to pursue the enterprise’s purpose,” in addition to finding
that SNM “engaged in multiple acts of racketeering activity consisting of murder,
obstruction of justice or witness tampering, or drug trafficking.” Aplee.’s Resp. Br.
at 29 (internal quotations omitted). To that end, the government contends that “[t]he
evidence of violent acts committed by SNM members was strong proof of these
elements” because, by showing “that members had committed murders on SNM’s
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behalf,” the evidence “showed that [SNM] was engaged in murder, one of the
specific racketeering activities alleged.” Id. at 30. Likewise, “evidence that SNM
members followed orders . . . went towards establishing the SNM’s leadership
structure and rules, and thus its existence as an enterprise.” Id.
And, of course, the government also had to prove that Mr. Martinez “murdered
[Mr.] Romero ‘to maintain or increase his position in’ . . . the SNM,” and “[t]he
evidence of SNM’s violent acts helped to establish that violence is essential to one’s
status in the gang.” Id. at 31 (quoting Supp. R., Vol. 1, at 59 (Court’s Final Jury
Instr. No. 30)). The government posits that the evidence showing that the “SNM
expected acts of disrespect to be punished severely” helped explain why Mr.
Martinez “would believe that punishing [Mr.] Romero’s disrespect would enhance his
own standing” in the gang. Id. Because Mr. Martinez disputed “his intent to advance
his position in [SNM],” the government argues that the disputed evidence was
relevant beyond the parameters of establishing SNM as a violent enterprise. Id.
After carefully studying Mr. Martinez’s arguments and the caselaw he relies
on, we conclude that the government has the better of this dispute. For starters,
generally, a defendant cannot deprive the government of the opportunity to present a
rich, nuanced case establishing guilt by offering abstract concessions and
stipulations. In that regard, the enterprise murder evidence could be—and was—
probative across multiple vectors. None of the cases on which Mr. Martinez relies
state otherwise.
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Relatedly, insofar as Mr. Martinez argues that his concession categorically
prohibited the government from introducing enterprise murder evidence, “a criminal
defendant may not stipulate or admit his way out of the full evidentiary force of [his]
case.” Old Chief, 519 U.S. at 186. Accordingly, we are “general[ly] reluctan[t] to
tell the government how to prove a particular element,” and have limited the
introduction of evidence “in the face of a stipulation only when the element involves
the defendant’s status as a convicted felon.” United States v. Herrera,
51 F.4th 1226,
1256 (10th Cir. 2022).
Old Chief’s limiting principles are strongly at play here, where “a piece of
evidence may address any number of separate elements, striking hard just because it
shows so much at once.” 519 U.S. at 187. The multifunctional value of the evidence
at issue in this case is a well-recognized feature of racketeering conspiracy cases
generally. See, e.g., United States v. Turkette,
452 U.S. 576, 583 (1981) (recognizing
that “proof used to establish . . . separate [RICO] elements may in particular cases
coalesce”); United States v. Hutchinson,
573 F.3d 1011, 1021 (10th Cir. 2009)
(“[E]vidence used to prove the pattern of racketeering activity and the evidence
establishing an enterprise ‘may in particular cases coalesce.’” (quoting Boyle v.
United States,
556 U.S. 938, 947 (2009)); cf. Boyle,
556 U.S. at 947 (“[I]f [a jury
instruction] is used to mean that the existence of an enterprise may never be inferred
from the evidence showing that persons associated with the enterprise engaged in a
pattern of racketeering activity, it is incorrect.” (emphasis added)). Furthermore,
contrary to Mr. Martinez’s argument that the enterprise murder evidence’s probative
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value was limited to whether the “SNM was a racketeering enterprise that engaged in
racketeering activities such as murder, witness intimidation, and drug tracking”—and
those were matters that he already had conceded—the enterprise murder evidence
presented at trial could (and did) apply to elements that Mr. Martinez disputed.8
Aplt.’s Opening Br. at 37.
Central to the government’s case against Mr. Martinez was the importance of
respect and the use of violence to acquire—and maintain—it. In SNM, “respect” is
the central marker of “status”—and “status” accords valuable benefits, like access to
drugs. R., Vol. 4, at 897. And, more specifically as it relates to the government’s
burden, as the government urged during its closing argument, “to understand what
happened to David Romero, to understand what happened to Donald Salazar, . . . you
have to understand how it is that the SNM operates.” Id. at 2774–75. That is, “[y]ou
have to understand that respect is everything,” including life and death, and that
murder is how respect is maintained.
Id.
8
The VICAR and racketeering conspiracy statutes are substantially
similar and define “enterprise” the same way: “any partnership, corporation,
association, or other legal entity, and any union or group of individuals associated in
fact although not a legal entity.” The only difference is that VICAR includes an
interstate commerce requirement within the definition of enterprise, whereas RICO
places that element within each substantive provision. Compare 18 U.S.C.
§ 1959(b)(2) with
18 U.S.C. §§ 1961(4), 1962(a)–(c). Due to their substantial
overlap, the Supreme Court’s observation that proof of a RICO enterprise may
“coalesce” with proof of other RICO elements supports the proposition that
enterprise evidence may have a similarly coalescent effect here as to the VICAR
charge. Turkette,
452 U.S. at 583.
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SNM’s trail of bloodshed—even presented in a limited fashion as here—
offered valuable context as to why Mr. Martinez would murder his cousin over a bag
of heroin and shoot Donald Salazar over seemingly childish trash talk. And, because
those facts were contested, the district court did not abuse its discretion when
concluding that Mr. Martinez’s “explicit[] and unambiguous[] conce[ssion] before
the jury” that SNM is a violent racketeering enterprise did not deprive the enterprise
murder evidence of its probative worth. Aplt.’s Reply Br. at 9.
The government not only showed the role “respect” and its counterpart,
“disrespect,” had in augmenting or undercutting a member’s status, but also its role
in maintaining organizational power from within and without the prison system. See,
e.g., id. at 2060 (Billy Cordova testifying: “That means when you disrespect one
carnal, you disrespect all of us. It’s more about not only looking weak but even
people thinking that we’re weak. We try to keep our status by instilling fear in other
people. So, if you move on one of us, we move back on you.”). In establishing
respect as SNM’s chief currency, the government also demonstrated that, in SNM, to
tolerate disrespect is to risk social bankruptcy and even death. See, e.g., id. at 897
(Mario Rodriguez testifying: “If you’re disrespected . . . [from] even within, if you
don’t do something about it . . . . [y]ou pretty much get knocked off.”).
Violence, then, became SNM’s go-to tool to secure respect—and thus power—
over people in the prisons and on the streets. Recall that Mario Rodriguez testified
that SNM “expected” new entrants “to continue to live up to the history of the
organization, the violence.” Id. at 895. To that end, according to him, SNM
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expected its members to “kill” law enforcement cooperators, among others. Id. at
893. With this background in mind, another witness, Roy Martinez, explained that he
participated in the murder of Javier Molina because SNM suspected that Javier
Molina cooperated with law enforcement.
However, echoing the comments of SNM member Mario Rodriguez, Roy
Martinez also stressed that, though SNM rewarded carnals who murdered its enemies,
a carnal’s failure to follow orders would result in his own death. See id. at 923
(testifying that SNM members “had no choice” but to follow orders because the
failure to follow orders would “get[] [one] killed in the process”); see also id. at 950
( testifying that he “killed for the SNM” to “become a leader,” and that the failure to
follow orders would result in a member’s own death). Likewise, Agent Acee’s brief
testimony regarding the many murders attributed to SNM members gave the jurors a
flavor of the exceptional body count resulting from SNM’s systematic exercise of
violence to maintain power.
Lastly, it would have been odd for the government to delve into the
organizational dynamics and social mores of SNM without substantively—as
opposed to abstractly—establishing that it was an organization in the first place. To
that end, Mr. Roark’s (unobjected-to) testimony regarding the 2001 double murder
and Mr. Molina’s murder—as well as Agent Acee’s testimony regarding the
government’s efforts to identify cooperators and the difficulties plaguing their
investigations of SNM—gave “descriptive[ly] rich[]” glimpses of SNM as an
organization—including its scale, power, and influence—in a way that Mr.
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Martinez’s abstract concession could not. Old Chief, 519 U.S. at 187; see R., Vol. 4,
at 713–714 (Agent Acee testifying that the government was able to prove the cold
case murder of Shane Dix after a SNM member began cooperating);
id. at 728–29
(testifying that the government was unable to prove two prison murders at the hands
of SNM member Edward Troup until long after his release).
In advising that the enterprise murder testimony was necessary “to give some
color” to the prosecution’s case over elements Mr. Martinez continued to contest, id.
at 657, the district court implicitly recognized that the evidence had “force beyond
any linear scheme of reasoning,” Old Chief, 519 U.S. at 187. Such a recognition is
entirely consistent with the Supreme Court’s observation that evidence of a conceded
issue may still be necessary to “tell[] a colorful story with descriptive richness.”
Id.
Put differently, giving the enterprise murder evidence at issue here its
“maximum reasonable probative force,” Herrera, 51 F.4th at 1262, added critical
context to the VICAR and felon-in-possession charges levied against Mr. Martinez.9
The government had to explain why Mr. Martinez felt motivated to kill his cousin,
Mr. Romero, over a stolen bag of heroin and shoot Donald Salazar over his post-
prison bravado. Coupling the body count with evidence that slights reflected both an
existential threat to a member’s place in the organization and an opportunity—if
9
Mr. Martinez does not contest on appeal that the government had the
right to proffer evidence as it related to his motive to murder Mr. Romero. In failing
to do so, he waived any argument that the enterprise murder evidence was not
probative as to that element. See Sawyers v. Norton, 962 F.3d 1270, 1286 (10th Cir.
2020) (“Issues not raised in the opening brief are deemed abandoned or waived.”
(quoting Tran v. Trs. of State Colls. in Colo.,
355 F.3d 1263, 1266 (10th Cir. 2004))).
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responded to violently—for advancement, helped the jury understand the motives
behind Mr. Martinez’s charged conduct. As such, we could hardly call the evidence
“inconsequential.” Soundingsides, 820 F.2d at 1237.
None of the cases that Mr. Martinez cites undercut this conclusion. None of
them arise in the racketeering context where evidence may serve multiple purposes
and not just operate to prove discrete elements. Furthermore, in most of the cases he
cites, the evidence was marshalled with regard to elements that were not even
disputed.
Start with Becker, where we held that evidence of prior bad acts—viz., drug
crimes—had little probative value where they occurred four-to-six years before, and
bore only facial similarity to, Mr. Becker’s current drug charges. See 230 F.3d at
1232–33. More specifically, in that case, the government sought admission of Mr.
Becker’s conviction to show motive and intent. See id. at 1232. Over Mr. Becker’s
objection, the district court admitted evidence of Mr. Becker’s prior adjudication—
specifically, his guilty plea—as a drug dealer under Federal Rule of Evidence 404(b).
See
id. at 1232–33.
On appeal, we reviewed the evidence’s relevance against our longstanding rule
that “prior narcotics involvement is relevant when that conduct is ‘close in time,
highly probative, and similar to the activity with which the defendant is charged.’”
Id. at 1232 (quoting United States v. Wilson,
107 F.3d 774, 785 (10th Cir. 1997),
abrogated on other grounds as recognized by United States v. King,
632 F.3d 646,
651–52 & n.5 (10th Cir. 2011)). Mr. Becker’s guilty plea, which “preceded the
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incident [giving rise to his federal prosecution] by approximately six years,” fell far
outside the scope of the Rule 404(b) exception. Id. Accordingly, we found that “the
relevance of [Mr.] Becker’s prior convictions [was] undermined by the length of time
between the prior acts and the conduct involved in the instant convictions.”
Id. In
addition, we concluded that the “bare evidence” of Mr. Becker’s guilty plea—as
opposed to evidence of “the underlying factual circumstances”—precluded a
comparison of his prior and present charges. Id. at 1233. Consequently, we could
not say that the evidence of the prior charge was relevant and, furthermore, could not
conclude that the prior bad act was more probative than prejudicial. See id.
Soundingsides also considered the relevance of prior bad acts evidence in the
context of a charge of second-degree murder. See 820 F.2d at 1236–37. There, we
concluded that the district court abused its discretion when it admitted testimony
from Mr. Soundingsides’s ex-girlfriend of the daily beatings she endured at his
hands—including one resulting in her miscarrying a baby—from five years prior to
the alleged murder. See id. at 1237. The government sought to use the evidence to
prove malice aforethought—an element of the charged offense. See id. at 1236.
However, notably, that was not an element that Mr. Soundingsides put at issue. See
id. at 1237.
We determined that the testimony lacked probative value because Mr.
Soundingsides never raised “intent” as a defense and reasoned that the government
could have proved malice aforethought from other sources of evidence, namely
photographs of the crime scene and expert testimony that a struggle occurred. Id.
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Accordingly, we concluded that “the incremental probative value of the extrinsic
offense is inconsequential when compared to its prejudice” where “the defendant’s
intent is not contested.” Id.
Similarly, in Edwards, a drug distribution case, we concluded that the district
court abused its discretion when it admitted evidence of the defendant’s prior drug
convictions to prove a question not in issue. See 540 F.3d at 1163. We found that
the evidence, consisting of convictions for possessing small quantities of cocaine and
marijuana, was irrelevant for the government’s “purported purpose[]” of establishing
“lack of mistake”—a question that “was never an issue [in] th[e] case.”
Id.
Compounding matters further, we also determined that the dissimilarity between the
prior convictions and the present charges undermined their relevance in Mr.
Edward’s prosecution. See
id. (“Likewise, we are unable to discern how evidence
that [Mr. Edwards] possessed personal-usage amounts of controlled substances [was]
relevant to show that he intended to distribute narcotics in the instant case.”).
A panel of our court exhibited similar concerns in Moncayo, where it
concluded that “[t]he minimal relevance” attending to an officer’s testimony of the
defendant’s prior drug activity was “significantly diminished by the fact that [the
officer’s] testimony was relevant only to an undisputed element of the case.” 440 F.
App’x at 654. The officer testified that, in the year before the incidents giving rise to
the federal prosecution, the officer had observed Mr. Moncayo drop an object—
ultimately determined to be a clear plastic bag containing several baggies of
cocaine—into the engine block of a car. See id. at 651. The government urged that
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the testimony tended to show Mr. Moncayo’s intent regarding the charged offenses.
See id. at 652. Disagreeing, the panel found that “factual differences between the
prior 2007 incident and the 2008 charges . . . undermine[d] the government’s
argument that the 2007 incident was relevant to establish [Mr.] Moncayo’s intent to
distribute.” Id. at 653. In fact, the evidence’s “only . . . probative value” went to two
issues that Mr. Moncayo “did not dispute”—“quantity” and “tools of the drug trade.”
Id. at 654.
As pertinent here, what all of these cases have in common is that none arise
“in a racketeering [context] in which the government was required to prove an
enterprise and a defendant’s purpose in committing the crime.” Aplee.’s Resp. Br. at
34. Yet, that context is of critical importance to our assessment of the challenged
evidence’s probative value. Moreover, each of these cases involved relevance
determinations based on discrete issues, which most often were not even in dispute.
Here, by contrast, the enterprise murder evidence’s probative value is not siloed to
the discrete issue of SNM’s status as an enterprise or its history of racketeering acts.
Rather, as explained supra, it bears on other issues that Mr. Martinez contested at
trial.
Specifically, the racketeering context places into full view the nature of Mr.
Martinez’s misplaced reliance on Becker, Soundingsides, Edwards, and Moncayo.
Unlike the years’ old drug convictions at issue in Becker, evidence of SNM’s long
history of violence from within and without the prison system was not used to
“impermissibly establish[] [Mr. Martinez’s] propensity to commit the crimes
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charged,” Becker, 230 F.3d at 1232, but rather to demonstrate the gang’s tried-and-
true use of violence—notably, through murders—to maintain “status by instilling fear
in other people” and the promotional opportunities that came through killing. R.,
Vol. 4, at 2060. Soundingsides also is distinguishable on that basis. And, even
further, it is distinguishable because Mr. Martinez’s “intent to advance his position in
the gang”—an element of his VICAR charge—was disputed. Aplee.’s Resp. Br. at
31; cf. Tan, 254 at 1209 (“Soundingsides is distinguishable from this case. Most
important, intent is at issue here.”). So too with Edwards and Moncayo.
In sum, as Old Chief instructs, “[a] syllogism is not a story, and a naked
proposition in a courtroom may be no match for the robust evidence that would be
used to prove it.” 519 U.S. at 189. Accordingly, Mr. Martinez is wrong to suggest
that his concession functioned as a firewall against the admission of other enterprise
and racketeering evidence. Moreover, the enterprise murder testimony had probative
value. Thus, the only way that the district court could have abused its discretion here
would be if the evidence’s prejudicial effects substantially outweighed its probative
value. But, as discussed infra, that was not so.
b. Prejudicial Effect
The district court did not abuse its discretion because the probative value of
the contested evidence was not outweighed—let alone substantially outweighed—by
the danger of any unfair prejudice stemming from that evidence. Mr. Martinez
argues that the evidence was unfairly prejudicial because it could “lure the [jury] into
declaring guilt by generalizing another’s guilt, the association with which becomes a
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bad character trait that made Mr. Martinez more likely to commit the charged
offenses.” Aplt.’s Opening Br. at 40. He reasons that the risk the jury would use
guilty-by-association to find him guilty for “his alleged involvement in the Romero
murder, witness intimidation, and being a felon-in-possession of a firearm” was
“exceptionally high” considering the enterprise murder evidence, which established
that Mr. Martinez’s compatriots engaged in similar criminal conduct. Id.; see also
Aplt.’s Reply Br. at 10 (arguing that the “RICO statute has . . . tremendous potential
for guilt by association” and that the enterprise evidence was prejudicial because “in
no way did it connect [him] to the enterprise” (quoting United States v. Flynn, 852
F.2d 1045, 1054 (8th Cir. 1988))).
The government responds that “SNM’s other violent acts carried a low risk of
unfair prejudice to [Mr.] Martinez” for three reasons. Aplee.’s Resp. Br. at 34. First,
“the enterprise evidence about which [Mr. Martinez] complains involved crimes
committed by other SNM members,” and Mr. Martinez “was not implicated in any of
them.” Id. Second, the “details about the other crimes were generally sparse” and
did not overpower the “violent and disturbing” testimony concerning the murder of
Mr. Romero, which Mr. Martinez himself placed at the center of trial. Id.; accord
Aplt.’s Opening Br. at 38 (arguing that “this trial was entirely about whether [he]
participated in the Romero murder, and other racketeering activity, in particular”).
Third, and finally, the court supplied a limiting instruction directing the jury to not
“infer [Mr.] Martinez’s guilt from the bad acts of other SNM members.” Aplee.’s
Resp. Br. at 35. We agree with the government.
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We conclude that any potential unfair prejudice did not “substantially
outweigh the probative value” of the enterprise murder evidence such that the
evidence might be “excluded under Rule 403.” United States v. Archuleta, 737 F.3d
1287, 1293 (10th Cir. 2013) (quoting Irving, 665 F.3d at 1213–14). As we said in
Herrera, “given the nature of this violence infested case,” there is “no reason why
testimony about an additional murder would cause the jury an improper emotional
reaction.” 51 F.4th at 1260 (quoting United States v. Cruz-Ramos,
987 F.3d 27, 43
(1st Cir. 2021)). This is especially so considering that Mr. Roark’s and Agent Acee’s
testimony involved only a cursory review of the murders and did not link them to Mr.
Martinez. See, e.g., R., Vol. 4, at 689–90 (Jerry Roark testifying that Mr. Martinez
was not involved in SNM-related prison murders he referenced in his testimony); id.
at 840 (Agent Acee testifying that Mr. Martinez was not involved in the murder of an
SNM member who cooperated with law enforcement).
Moreover, the district court instructed the jury that it could not infer Mr.
Martinez’s guilt from the bad acts of other SNM members. And, as we have said,
“[e]ven if actual prejudice exists, the court can often cure the prejudice through ‘less
dramatic measures, such as limiting instructions.’” Herrera, 51 F.4th at 1273
(quoting Zafiro v. United States, 506 U.S. 534, 539 (1993)).
We generally “presume that juries follow limiting instructions,” and Mr.
Martinez certainly points to no evidence that the jurors disregarded the instructions
here. United States v. Jones, 530 F.3d 1292, 1303 (10th Cir. 2008) (alteration
omitted) (quoting United States v. Lane,
883 F.2d 1484, 1498 (10th Cir. 1989)); see
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Jones, 530 F.3d at 1303 (presuming that jurors followed the limiting instruction
where there was “no reason to conclude that the jury did not follow the court’s
limiting instruction”). Indeed, the jury here heard evidence that SNM routinely
intimidated witnesses (another fact Mr. Martinez conceded) but nevertheless
acquitted Mr. Martinez of the witness intimidation charge. As we acknowledged in
Herrera, that “acquittal suggests that the jury could follow the instructions by
compartmentalizing the evidence.” 51 F.4th at 1266 n.11. Thus, absent any evidence
to the contrary, we presume that the limiting instruction here served to cure any
unfair prejudice.
As such, we conclude that any unfair prejudice stemming from the district
court’s admission of certain enterprise murder evidence did not outweigh—let alone
substantially outweigh—the evidence’s probative value. Therefore, we uphold the
district court’s judgment in the face of Mr. Martinez’s Rule 403 challenge.
C. The Recusal Issue
We now turn to the final issue in this case: whether the presiding district court
judge—Judge Browning—abused his discretion in declining to grant a new trial
because of Mr. Martinez’s involvement in SNM’s threats against him.10 After
10
To be clear, as it relates to this recusal issue, when the district court
judge and the parties refer to threats against “the Court,” they appear to be
universally referring to threats of personal harm against Judge Browning, who
presided over Mr. Martinez’s trial. In a related vein, when we refer in this part of the
opinion to the “district court judge” or “judge” or linguistic variants thereof, we also
are referring to Judge Browning.
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reviewing the relevant factual background and applicable legal framework, we
conclude that the district court judge did not abuse his discretion.
1. Factual and Procedural Background
a. Agent Acee’s Testimony
The recusal issue springs from Agent Acee’s testimony involving arrests he
made during the morning of trial. Specifically, at the end of direct examination, the
government and Agent Acee had the following exchange:
The government: And in terms of the gang being alive and well,
you mentioned arresting somebody earlier, in
recent weeks, with 30 pounds of
methamphetamine. Did you arrest anybody
even this morning before court who were SNM
gang members?
Agent Acee: I arrested four SNM gang members this
morning and one two days ago.
The government: And did you locate any evidence of crime in
relation to those arrests?
Agent Acee: Yes. The one two days ago, I recovered a
loaded firearm. And this morning we
recovered four guns and methamphetamine
and heroin.
R., Vol. 4, at 809.
Following this testimony, defense counsel asked to approach and requested
discovery related to those recent arrests. Counsel also asked whether the government
was contending that the arrests were related to Mr. Martinez. The government
responded by saying:
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No, they have nothing to do with the defendant, and I have no
objection to him asking a little about it. Well, the stuff this
morning relates to this case, but not directly to the defendant. It
relates to threats against a witness, and I didn’t want to bring that
out in front of the jury.
Id. at 810; see also id. at 811 (“Mr. Martinez: And the four arrests are all related to
witness intimidation? The government: It [sic] tends to be. We’re looking at that.”).
By way of discovery, the government then supplied Mr. Martinez with a ninety-eight-
page sealed affidavit signed by Agent Acee related to the arrests.
Later, on cross examination, defense counsel asked Agent Acee: “You had
mentioned a plot to kill FBI agents and prosecutors.” Id. at 834 (emphases added).
Agent Acee responded in the affirmative and then testified that Mr. Martinez was
involved in two such threats. At this juncture, Agent Acee had not discussed any
threats or plots against any judge—let alone the presiding district court judge.
However, near the end of cross-examination, defense counsel and Agent Acee
had the following exchange:
Mr. Martinez: [S]o, . . . I just wanted to go and . . . close off
the threats against FBI agents and prosecutors,
just for completeness. I think there was a
judge’s name . . . float[ing] [in] one of those
[threats]; is that correct?”
Agent Acee: Yes.
Mr. Martinez: Nobody was actually killed or attacked arising
from those threats; correct?
Agent Acee: Not yet. I don’t know that they’re over.
Mr. Martinez: Not yet?
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Agent Acee: It took them two years to get [a murder victim].
....
Mr. Martinez: Are there any charges arising from the threats
against FBI agents, prosecutors?
Agent Acee: I arrested four people this morning.
Mr. Martinez: And obviously, none of that stuff has been
produced to the defense?
Agent Acee: I haven’t even written a report yet. I came
here. I changed clothes and came here.
Id. at 842–43 (emphases added).
b. The Arrest Warrant Affidavit
As noted, the government disclosed a search warrant affidavit to Mr. Martinez.
Ninety-eight pages long, the affidavit detailed threats that SNM members issued
against federal law enforcement officers, federal prosecutors, and the presiding
district court judge. See, e.g., id., Vol. 2, at 82–83 (Def.’s Sealed Mot. for a New
Trial, filed Apr. 13, 2021) (hereinafter the “Rule 33 Motion”) (noting that the
affidavit provided that “[o]ver the past several weeks, case agents have become
aware of numerous threats aimed at government witnesses, federal prosecutors, FBI
agents, and the presiding judge in the United States’ case against the SNM”).
As revealed in the affidavit’s averments, Mr. Martinez was not the principal
target of the FBI’s investigation. In fact, his name came up only at the end of the
affidavit in two paragraphs. However, the affidavit stated that Mr. Martinez and
others “discuss[ed] putting a green light on ‘[Agent] Acee, [Assistant U.S. Attorney]
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Armijo, and [Judge] Browning,’ and lighting up the courtroom when the case(s) went
to trial.” Id. at 83.
c. Mr. Martinez Moves for a Mistrial
During trial, and after reviewing the affidavit, Mr. Martinez moved for a
mistrial—notably, not based on any recusal issue but, rather, based on the
government’s alleged failure to timely disclose information. See R., Vol. 4, at 859
(“Mr. Martinez is . . . moving for a mistrial . . . based on the failure to disclose the
information that Agent Acee testified to and was elicited on cross about the [arrests
of SNM members] that happened this morning.”). The district court judge denied
Mr. Martinez’s motion without prejudice. Mr. Martinez does not challenge this
ruling on appeal.
Though Mr. Martinez did not raise a recusal concern in his oral motion for a
mistrial, his argument on appeal relies extensively on his oral motion and the issues
he raised therein. See Aplt.’s Opening Br. at 20 (arguing that his oral motion for a
mistrial “made clear that, based upon Agent Acee’s testimony, the discovery
provided to Mr. Martinez, and the search warrant affidavit, that Mr. Martinez was
allegedly involved in threats against the Court”). In particular, he claims that the
following defense argument put the district court judge on notice that Mr. Martinez
had made threats against him:
Special Agent Acee testified that the Government was in
possession of information regarding alleged threats that happened
when Mr. Martinez was incarcerated in Santa Fe. It’s been more
than a year since he was incarcerated in Santa Fe. It certainly lends
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credence to the fact that the government has had this information
before this morning.
And also, Your Honor, as I stated—and we can enter it into
the record, if you’d like—we did receive a 302 in discovery in
February, last month, dated January 19, 2021, where Special Agent
Stemo stated that she was listening to recordings. Now, she does
not say that they’re investigating threats. All she states is—and
this is a quote—“It does not appear that any information pertaining
to hits on AUSA Maria Armijo, SA Bryan Acee, or Judge
Browning was exchanged during these interactions.”
The Government knew that these [threats] existed. The
Government was investigating it, but made no disclosure prior to
Special Agent Acee testifying in this trial. That’s prejudicial. We
obviously would have approached this very differently. All of the
instances of what is disclosed in trial and what is disclosed in
discovery of any alleged threats against the Court, the FBI agents,
or the federal prosecutors in this case don’t mention Mr. Martinez
whatsoever. They [only] refer to prior threats from prior trials . . .
.
R., Vol. 4, at 861–62 (Trial Tr., Vol. 3, dated Mar. 3, 2021) (emphasis added). As
noted, the district court judge denied his motion.
d. Mr. Martinez’s Motion for a New Trial
Following the jury’s verdict, Mr. Martinez moved for a new trial under Federal
Rule of Criminal Procedure 33. In his motion, Mr. Martinez claimed that he was
entitled to a new trial because the district court judge failed to recuse himself after he
heard testimony and argument, and reviewed a written affidavit detailing Mr.
Martinez’s alleged threats against him.
More specifically, Mr. Martinez claimed that “during trial, it came to the
Court’s attention that Special Agent Acee applied for a search warrant and stated in
that warrant that he ‘is aware certain members of the gang [SNM] have advocated for
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FBI agents, federal prosecutors, and the presiding judge to be harmed.’” Id., Vol. 2,
at 148 (Def.’s Sealed Reply to the Gov.’s Sealed Resp. to Def.’s Sealed Mot. for New
Trial, filed Jun. 1, 2021) (quoting the Acee Aff.). Thus, based on the contents of the
search warrant, Mr. Martinez submitted that there was “a reasonable factual basis for
calling the Court’s impartiality into question, objectively speaking.” Id. And he
posited that “having a trial conducted by a judge who objectively speaking is not
impartial . . . is the kind of injustice Rule 33 is designed to correct.” Id. at 147. In
like manner, he asked the judge to recuse himself from his sentencing because “a
reasonable person would have an objective basis for questioning [his] impartiality.”
Id. at 150.
During a subsequent hearing on Mr. Martinez’s Rule 33 Motion, the district
court judge explained that he did not know, at the time of trial, that Mr. Martinez was
connected to the threats against him. In particular, he asserted that “When that
[Agent Acee’s] testimony came out and even when I read the [Rule 33 Motion]
briefs, I’m like, [Mr. Martinez is] not involved in this.” Id., Vol. 4, at 2938 (Tr. of
Mot. Hr’g., dated Jun. 3, 2021) (hereinafter the “Rule 33 Motion Hearing”). Stated
otherwise, the judge did not “pick . . . up at all” during Agent Acee’s testimony that
Mr. Martinez was involved in threats against him. Id. at 2941. Relatedly, the judge
clarified that he “didn’t have a chance to look at” the Acee Affidavit, where Mr.
Martinez was explicitly mentioned as being involved in threat discussions related to
him. Id.
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Additionally, the judge inquired as to why Mr. Martinez failed to move for
recusal during the trial. Mr. Martinez asserted that 28 U.S.C. § 455(a)—the statute
governing the recusal of federal judges—encompassed two separate requirements: (1)
the requirement to consider a motion to recuse made by a party, and (2) a judge’s
independent obligation to recuse if doing so would be required by § 455(a). And
citing the court’s “separate obligation to recuse,” Mr. Martinez argued that, under the
circumstances of his case, “the Court should have recused itself regardless of whether
there was a request.” Id. at 2945.
Contrary to the statements in his motion, in the hearing, Mr. Martinez asserted
that the district court judge’s independent obligation to recuse sprang from “what was
said in the courtroom,” as opposed to the affidavit. Id. at 2957. In fact, he explicitly
disclaimed reliance on the affidavit—stating that “[t]he motion [for a new trial] is not
about the affidavit.” Id. (emphasis added). And, with respect to what was said in the
courtroom, Mr. Martinez urged the judge not to “look at a single question and a
single answer from the cross-examination in a vacuum” but, rather, “look at the
cross-examination as a whole.” Id. at 2958. To that end, he reasoned that “the
conversation that was occurring in the courtroom started with threats against the
federal prosecutors and FBI agents, and then evolved into questions about . . . a threat
against the Court.” Id.
Once more, the district judge responded that he never connected the vague,
passing reference to a threat against a judge to Mr. Martinez because Mr. Martinez
was “in custody” and “four [other SNM members] [were] picked up [that day].” Id.
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at 2960. The hearing ended with the district court judge advising that he would
“probably” not grant the Rule 33 Motion because “no motion to recuse was made”
during trial, despite the parties having “more information” than he did. Id. at 2962.
To better understand precisely what information he had at his disposal, the judge
stated he would “go back and try to piece together what information” he had
available to him during the trial. Id. Nevertheless, the judge stressed that Mr.
Martinez’s connection to the threats “escaped” his attention and that he did not “pick
up” that it was Mr. Martinez who was “involved in” the threats. Id. Finally, the
judge noted that he would “look at the portion [of the Rule 33 Motion] that asks for a
new sentencing judge.”11 Id. at 2963.
e. The District Court’s Order Denying the Motion for a New
Trial
The district court judge later issued a memorandum opinion and order denying
the motion for a new trial. See id., Vol. 1, at 301–59 (Unsealed Mem. Op. & Order,
filed Jul. 12, 2021). In that order, the judge acknowledged that “the United States
Marshals alerted the Court that Robert Padilla[, an SNM associate,] wanted to light
up the court,” that “[t]he Marshals told the court it was a future threat,” and that the
court knew that Robert Padilla and other SNM members wanted to kill cooperating
witnesses as they came to the courthouse to testify at Mr. Martinez’s trial. Id. at
11
Regarding the sentencing-related recusal challenge, significantly, during
the Rule 33 Motion Hearing, Mr. Martinez “agreed that the Court did not have
discretion as to Count 1 [i.e., the VICAR count], which has a minimum life sentence.
. . . [and] that, although Counts 2 and 4 have discretionary sentences, those
sentences” would have no impact on his release date. R., Vol. 1, at 333.
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311–12. The judge explained that he did “not recall [Mr.] Martinez being connected
to this threat.” Id. at 312.
Moreover, the judge detailed the information he had at his disposal concerning
the threats, the court staff involved in reviewing that information, and their
assessments of the information. Specifically, the judge cited six central facts in
support of the contention that the judge at no point during the trial knew that Mr.
Martinez was connected to the threats against the judge. First, the judge’s courtroom
deputy reviewed the warrant affidavit and “did not see that [Mr.] Martinez was
connected to the alleged threats.” Id. at 320. Second, the courtroom deputy “showed
the Court a few highlighted pages [of the affidavit], which made reference to the
Court, but the Court did not read all the capitalized names carefully, and did not
make the connection between [Mr.] Martinez and the threat.” Id. Third, the judge
explained that he did not “recall anything connecting [Mr.] Martinez to the alleged
threats on the Court, and, in any case, . . . did not mentally connect [Mr.] Martinez to
the alleged threats on the Court.” Id.
Fourth, two of the judge’s law clerks cursorily reviewed the affidavit and
“[n]either . . . connected [Mr.] Martinez to the threat.” Id. Fifth, during oral
argument regarding Mr. Martinez’s oral motion for a mistrial, “[t]he Court still did
not pick up that [Mr.] Martinez was involved in the threat on the Court.” Id. at 321.
Sixth, and finally, the judge reported seeing a news article in the Albuquerque
Journal discussing Agent Acee’s testimony regarding the threat; however, the judge
only “scanned [the article] to see if [his] name was mentioned, saw that [his] name
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was not in it, did not read every line, and moved on to the courtroom and the
continuance of trial”; this “scanning of the article did not alert the Court that [Mr.]
Martinez was connected to the alleged threat on the Court.” Id. at 325. Importantly,
the article did not draw the connection between Mr. Martinez and the threat, as it
noted only that, “[u]nder cross examination, [Agent] Acee testified that [Mr.]
Martinez of Truchas had been linked to two threats to kill FBI agents and
prosecutors.” Id. at 324.
In addition to these six central facts, the judge cited the following as further
support for his conclusion that he had failed to connect Mr. Martinez to the threats
during trial: the government represented that the arrests Agent Acee made the
morning of trial “relate[d] to threats against a witness” and had “nothing to do with
[Mr.] Martinez”; the court did not closely “scrutinize” the affidavit, “which
discusses . . . [Mr.] Martinez only in a couple paragraphs out of ninety-eight pages”
and so, though “the Court understood that the [affidavit] discuss[ed] threats,” it “did
not make the connection that [Mr.] Martinez was involved in the threat on the Court”;
Agent Acee’s testimony on cross-examination “did not explicitly link [Mr.] Martinez
to threats against the Court”; Mr. Martinez moved for a mistrial because the
government’s late disclosure allegedly prejudiced him—“not because the Court
needed to recuse because of the threat”; and “trial, especially a trial taking place in
March 2021 during the pandemic, is a fast-paced environment where the Court does
not have the time and the brain power to sift through all the facts that the parties have
at their disposal where the parties do not raise the issue.” Id. at 350–51.
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Nevertheless, the district court judge acknowledged that, in hindsight, he
should have paid closer attention to the details of the evidence and the argument and
thus made the connection regarding Mr. Martinez’s relationship to the threats. But
the judge emphasized that “trying a potentially month-long trial with Covid-19
protocols and . . . the arrests that morning and the oral motion for a mistrial”
occupied his attention. Id. at 351. And, the judge observed, “if [Mr.] Martinez did
not think about [the recusal issue], he can hardly criticize the Court for not raising the
issue su[a] sponte.” Id. Ultimately, the district court judge concluded that because
he “was not consciously aware of [Mr.] Martinez’[s] connection to the threat, . . .
[he] could not evaluate whether [he] needed to recuse under § 455” and our
precedent. Id.
Though the district court judge cited his lack of actual knowledge of Mr.
Martinez’s connection to the threats as his chief reason for denying the Rule 33
Motion, he offered two additional bases for the denial. First, the judge reasoned that
the threat was not as serious as those discussed in Tenth Circuit precedent, notably in
our decision in United States v. Greenspan, 26 F.3d 1001 (10th Cir. 1994), because
the alleged plotters here had been arrested. Second, the judge noted that, unlike
Greenspan, “the Court has not taken, nor is there is [sic] a suggestion that the Court
has taken, any action either to expedite trial proceedings to mitigate the threat that
[Mr.] Martinez poses or rule[d] against Martinez because of the alleged threat . . . .”
R., Vol. 1, at 354.
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The district court judge also denied Mr. Martinez’s request for him to recuse
from the sentencing. As the basis for this refusal to recuse, the judge cited, once
more, the reduced severity of the threat and the fact that Mr. Martinez did “not allege
that the Court [took] any action against him because of the threat.” Id. at 356.
Notably, however, the judge offered a third reason justifying its continuing
involvement in Mr. Martinez’s sentencing: owing to the mandatory life sentence
attached to Mr. Martinez’s VICAR conviction, an objective, reasonable person would
not question his impartiality in imposing sentence on Mr. Martinez because the
mandatory sentence deprived him of sentencing discretion.
2. Legal Framework
Rule 33 of the Federal Rules of Criminal Procedure authorizes district courts
to grant new trials if “require[d]” in “the interest of justice.” FED. R. CRIM. P. 33(a).
A new trial may be an appropriate remedy if the judge’s impartiality during the trial
could have reasonably been questioned. See United States v. Nickl, 427 F.3d 1286,
1297–98 (10th Cir. 2005).
Specifically, federal law instructs that a judge “shall disqualify himself in any
proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C.
§ 455(a). “This [recusal] requirement is intended ‘to promote confidence in the
judiciary by avoiding even the appearance of impropriety whenever possible.’”
United States v. Wells,
873 F.3d 1241, 1251 (10th Cir. 2017) (quoting Mathis v. Huff
& Puff Trucking, Inc.,
787 F.3d 1297, 1310 (10th Cir. 2015)). “The standard is
purely objective. The inquiry is limited to outward manifestations and reasonable
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inferences drawn therefrom.” United States v. Cooley, 1 F.3d 985, 993 (10th Cir.
1993); see
id. (“In applying § 455(a), the judge’s actual state of mind, purity of heart,
incorruptibility, or lack of partiality are not the issue.”); see also Charles Gardner
Geyh & Kris Markarian, JUDICIAL DISQUALIFICATION: AN ANALYSIS OF FEDERAL
LAW, § II.B.1.A, at 20 (3d ed. 2020) (“Section 455(a) makes clear that judges should
apply an objective standard in determining whether to disqualify.”). “In other words,
a judge’s subjective state of mind is irrelevant; what matters is whether ‘the public
might reasonably believe that [the judge] knew’ of ‘facts creating an appearance of
impropriety.’” Wells,
873 F.3d at 1251 (alteration in original) (emphasis added)
(quoting Liljeberg v. Health Serv. Acquisition Corp.,
486 U.S. 847, 860 (1988)).
“In applying the [objective] test, the initial inquiry is whether a reasonable
factual basis exists for calling the judge’s impartiality into question.” Cooley, 1 F.3d
at 993; see United States v. Pearson,
203 F.3d 1243, 1277 (10th Cir. 2000) (noting
that we examine whether “sufficient factual grounds exist to cause a reasonable,
objective person, knowing all the relevant facts, to question the judge’s
impartiality”); see also Cheney v. U.S. Dist. Ct. for the Dist. of Columbia,
541 U.S.
913, 914 (2004) (mem.) (Scalia, J.) (“The decision whether a judge’s impartiality can
‘reasonably be questioned’ is to be made in light of the facts as they existed, and not
as they were surmised or reported.”) (quoting Microsoft Corp. v. United States,
530
U.S. 1301, 1302 (2000) (mem.) (Rehnquist, C.J.)).
“We have stressed that ‘section 455(a) must not be so broadly construed that it
becomes, in effect, presumptive, so that recusal is mandated upon the merest
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unsubstantiated suggestion of personal bias or prejudice.’” Cooley, 1 F.3d at 993
(quoting Franks v. Nimmo,
796 F.2d 1230, 1234 (10th Cir. 1986)). Indeed, it should
not be forgotten that “[t]here is as much obligation for a judge not to recuse when
there is no occasion for him to do so as there is for him to do so when there is.”
Hinman v. Rogers,
831 F.2d 937, 939 (10th Cir. 1987); accord Nichols v. Alley,
71
F.3d 347, 351 (10th Cir. 1995) (“[W]e are mindful that a judge has as strong a duty to
sit when there is no legitimate reason to recuse as he does to recuse when the law and
facts require.”); see also Geyh & Markarian, supra, § II.A.2.b, at 16 (quoting Hinman
and noting that “most circuits” have adopted this “duty to sit” principle).
“In conducting this review, we must ask how these facts would appear to a
well-informed, thoughtful and objective observer,” who is “an average member of the
public,” not a “hypersensitive, cynical, and suspicious person.” Mathis, 787 F.3d at
1310 (emphasis added) (quoting Sensley v. Albritton,
385 F.3d 591, 599 (5th Cir.
2004)). And courts must take into account that “cases within § 455(a) are extremely
fact driven ‘and must be judged on [their] unique facts and circumstances more than
by comparison to situations considered in prior jurisprudence.’” Nichols,
71 F.3d at
351 (alteration in original) (quoting United States v. Jordan,
49 F.3d 152, 157 (5th
Cir. 1995)); accord Wells,
873 F.3d at 1251.
Notably, “recusal is required even when a judge lacks actual knowledge of the
facts indicating his interest or bias in the case if a reasonable person, knowing all the
circumstances would expect that the judge would have actual knowledge.” Wells,
873 F.3d at 1251 (10th Cir. 2017) (quoting Liljeberg, 486 U.S. at 860–61); see E. &
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J. Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1295 n.7 (9th Cir. 1992) (noting
that the judge’s “lack of actual knowledge is irrelevant if . . . a person knowing all of
the facts could reasonably question [the judge’s] impartiality”); Geyh & Markarian,
supra, § II.B.1.a at 22 (“Section 455 also requires disqualification if a reasonable
person might believe that the judge was aware of circumstances creating an
appearance of partiality, even if the judge was in fact unaware.”).
To be sure, the statute does not contemplate that judges will, sua sponte,
“perform the impossible—to disqualify themselves based on facts they do not know.”
Liljeberg, 486 U.S. at 861; see
id. (“[A] judge could never be expected to disqualify
himself based on some fact he does not know, even though the fact is one that
perhaps he should know or one that people might reasonably suspect that he does
know.”). Nevertheless, “a judge has a continuing duty to recuse before, during, or, in
some circumstances, after a proceeding, if the judge concludes that sufficient factual
grounds exist to cause an objective observer reasonably to question the judge’s
impartiality.” Cooley,
1 F.3d at 992. Thus, even if the judge lacked actual
knowledge of facts necessitating recusal during the proceeding, “the judge is not
called upon to perform an impossible feat” when “called upon to rectify an oversight
and to take the steps necessary to maintain public confidence in the impartiality of
the judiciary,” Liljeberg,
486 U.S. at 861, upon determining that “a reasonable
person, knowing all the circumstances would expect that the judge would have actual
knowledge” of those facts, Wells,
873 F.3d at 1251 (quoting Liljeberg,
486 U.S. at
861).
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One such step to maintain the confidence of the public could be granting a
motion for new trial, when the judge determines the judge’s participation in the trial
effected a violation—even an unknowing one—of the recusal statute. See Nickl, 427
F.3d at 1297–98; cf. Liljeberg, 486 U.S. at 861 (noting that “[t]he initial appeal was
taken from his failure to disqualify himself and vacate the judgment after he became
aware of the appearance of impropriety, not from his failure to disqualify himself
when he first became involved in the litigation and lacked the requisite knowledge”).
We have held that “threats or attempts to intimidate a judge will not ordinarily
satisfy the requirements for disqualification under section 455(a).” Greenspan, 26
F.3d at 1006; accord Cooley, 1. F3d at 993–94. This includes death threats,
especially when there is reason to believe that they are strategically made to force
recusal. See, e.g., Geyh & Markarian, supra, II.B.1.b.iv, at 48–49 (“Parties and their
lawyers sometimes behave in ways that predictably engender a judge’s animus, but
such behavior does not trigger the need for disqualification. To hold otherwise
would be to create an opportunity for parties to exhibit hostile behavior strategically,
as a means to force disqualification. . . . The courts have taken a similar approach to
threats against the judge.”).
3. Analysis
Mr. Martinez argues that the district judge abused his discretion in denying
Mr. Martinez’s Rule 33 Motion, reasoning that a reasonable person—aware of all the
facts—would have questioned whether the judge could have impartially presided
over his trial and sentencing in light of the “serious and credible” threats against the
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judge—threats that were undoubtedly “not designed to judge shop or achieve recusal
of the trial judge.” Aplt.’s Opening Br. at 44; see also Aplt.’s Reply Br. at 14 (“The
focus is instead on whether the threat was real (the record established that it was),
and whether the threat was made to secure a trial benefit (there is no record evidence
that it was).”). Labeling as “suspect” the judge’s assertions that he lacked actual
knowledge of any connection between Mr. Martinez and the threats against him, Mr.
Martinez stresses that “the test is not whether the court knew of the threat, but rather
whether a reasonable, objective person would call into question, based upon all of the
facts, the impartiality of the court in presiding over the proceeding.” Aplt.’s Opening
Br. at 45–46; Aplt.’s Reply Br. at 13 (“The § 455 recusal analysis, however, does not
look at Judge Browning’s actual knowledge. It looks only to whether a reasonable,
objective person would question Judge Browning’s impartiality.”).
Moreover, in a similar vein, Mr. Martinez suggests that the judge’s subjective
assessment of the severity of the threats against him is immaterial. See Aplt.’s
Opening Br. at 44 n.2 (noting that the district court’s conclusion that “no reasonable
person could question its impartiality because the threats against it [i.e., the district
judge] were not as serious as the threats against the court in Greenspan” was
“improper because it [was] based upon the court’s subjective understanding of the
threats against” it); Aplt.’s Reply Br. at 14 (“Whether a reasonable observer would
objectively believe that Judge Browning subjectively believed that he was being
legitimately threatened is immaterial.”).
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In sum, Mr. Martinez concludes that “[i]t was an abuse of discretion to deny
[his] motion for a new trial because the threats objectively call into question the
propriety of Mr. Martinez’s trial and sentence.” Aplt.’s Opening Br. at 46. Though
we agree in part with the analytical premises of Mr. Martinez’s arguments, we do not
agree with his conclusions. Accordingly, we uphold the district court’s decision
denying the Rule 33 Motion.
a. Whether the Judge Should Have Recused from the
Trial
i. Analytical Scope
We begin by defining the analytical scope for our analysis. Given the
Supreme Court’s clear language in Liljeberg, 486 U.S. at 861, and our own precedent
in Wells,
873 F.3d at 1251, we agree with Mr. Martinez, insofar as he contends that
the focus of the § 455(a) recusal analysis is not properly on whether the presiding
district judge actually knew facts that would necessitate his recusal. Rather, the
focus of the analysis is on whether “a reasonable person, knowing all the
circumstances would expect that the judge would have actual knowledge” of the facts
that would necessitate his recusal, Wells,
873 F.3d at 1251 (emphasis added) (quoting
Liljeberg, 486 U.S. at 860–61)— viz., whether a reasonable person would expect the
judge to have actual knowledge of facts that would have caused a reasonable person
to question whether the judge could impartially preside over the proceedings, see
Geyh & Markarian, supra, § II.B.1.a, at 22 (“Section 455 also requires
disqualification if a reasonable person might believe that the judge was aware of
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circumstances creating an appearance of partiality, even if the judge was in fact
unaware.”).
To the extent that the district court judge here believed that the focus of
§ 455(a)’s recusal analysis was on what he actually knew about the threats, he was
mistaken. See R., Vol. 1, at 301 (opining in denying the motion for new trial that one
reason for that action was because “the Court was not aware of the connection
between [Mr.] Martinez and the threat until after trial”). Yet it does not ineluctably
or even naturally follow, as a matter of logic, that evidence of a judge’s actual
knowledge is irrelevant. Such evidence, as here, may shed significant light on—and
even answer—the proper question of what a reasonable observer would expect the
judge to know. And because it is “axiomatic” that we may affirm on any basis that
finds support in the record, United States v. Garcia, 946 F.3d 1191, 1207 (10th Cir.
2020), notwithstanding the district judge’s mistaken analytical focus here, we
ultimately uphold his decision denying the motion for new trial, after undertaking an
inquiry that views the matter through the proper analytical lens.
Before undertaking that inquiry into what a reasonable observer—fully
apprised of the relevant facts—would have expected the judge to know about Mr.
Martinez’s connection to SNM’s threats against him, it is important to recall that
“threats or other attempts to intimidate the judge” under our precedent “will not
ordinarily satisfy the requirements for disqualification under § 455(a).” Cooley, 1
F.3d at 993–94. More specifically, not “all death threats against a judge will mandate
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that judge’s recusal under Section 455.” Greenspan, 26 F.3d at 1006. We elaborated
on this point in Greenspan:
[I]f a death threat is communicated directly to the judge by a
defendant, it may normally be presumed that one of the
defendant’s motivations is to obtain a recusal, particularly if he
thereafter affirmatively seeks a recusal. As we have stated earlier,
if a judge concludes that recusal is at least one of the defendant's
objectives (whether or not the threat is taken seriously), then
section 455 will not mandate recusal because that statute is not
intended to be used as a forum shopping statute. Here, by
contrast, the defendant did not communicate the death threat to
the judge, nor is there any suggestion that the defendant ever
intended the judge to learn of the threat before it was actually
carried out. Thus, there is nothing here to suggest that the
defendant was using the threat as a device to force a recusal.
Id.; see Geyh & Markarian, supra, II.B.1.b.iv, at 48–51.
We agree with Mr. Martinez, however, insofar as he contends that the recusal
analysis does not turn on a particular district judge’s subjective assessment of the
seriousness of the threats but, rather, on whether a reasonable observer would
perceive the threats as serious and, moreover, to be of the kind that would cause a
reasonable observer to question the impartiality of a judge who would be expected to
be aware of them—for instance, the kind of threats that are in fact intended to be
carried out and not interposed for forum-shopping purposes. See Greenspan, 26 F.3d
at 1006 (“Even if this judge were one of those remarkable individuals who could
ignore the personal implications of such a [death] threat, the public reasonably could
doubt his ability to do so.”).
The district judge here, on the one hand, appeared to properly focus—in
assessing his duty to recuse—on the objective facts of this case. And, notably, he
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drew distinctions between the facts of this case and those in Greenspan. See R., Vol.
1, at 350 (in comparing the facts in this case to those in Greenspan, concluding that
“the threat is not as serious as the one in Greenspan, which involved a multi-state
conspiracy to hire a hitman to kill the judge and his family”); id. at 352 (“[T]he
alleged threat do[es] not rise to the level of seriousness in Greenspan.”).
On the other hand, the district judge appears to have mistakenly framed the
analysis in terms of his “perspective” of the seriousness of the threat, rather than the
perspective or viewpoint of the reasonable observer, with knowledge of the relevant
facts. Id. at 352–53 (stating that “from the Court’s perspective, there effectively was
no threat at the time that [Mr.] Martinez says the Court should have perceived the
threat, because all the men involved in the threat were and are in custody”); see id. at
353 (“[W]hile the Court mistakenly thought, at the time, that the four arrests on
Wednesday morning were related to the threat on the Court, with [Agent] Acee’s
testimony, the Court thought that all men related to the threat on the Court [were]
now in custody. So, on that Wednesday morning, the Court thought that the threat
was gone. Thus the seriousness of the threat was, in the Court’s mind, reduced to
zero at the precise moment that, [Mr.] Martinez contends, the Court learned of [Mr.]
Martinez’ ties to the alleged threat on the Court—the morning of the first day of
testimony.”). This analytical framing error, however, is of no moment because we
ultimately conclude below that the reasonable observer would not have expected the
district judge to know of Mr. Martinez’s connection to SNM’s threats against him in
the first place. Therefore, there would have been no occasion for the district judge to
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assess the seriousness of the threats. In any event, we may affirm on any ground
supported by the record. See, e.g., Garcia, 946 F.3d at 1207.
In laying the foundation for our analysis, we also must address a preservation
issue that impacts the factual universe that a reasonable observer would have
considered in setting expectations regarding what the district court judge should have
known concerning Mr. Martinez’s connection to SNM’s threats against him.
Critically, during the hearing on the Rule 33 Motion, Mr. Martinez expressly
disclaimed reliance on the contents of Agent Acee’s affidavit to support his request
for recusal.
The context of this disclaimer is important. It came immediately after a
dialogue between the district court judge and the prosecutor, in which the judge
questioned whether he “ever read the affidavit” or “got a copy,” and the prosecutor
indicated that the affidavit was “recent,” and the prosecutor was “fairly certain” that
the judge “did not get a copy” and the prosecutor was “not sure” that the judge “had
access to it.” R., Vol. 4, at 2956–57. At this point, Mr. Martinez agreed with the
prosecutor’s statements, but stressed that the judge’s apparent lack of access to the
affidavit did not undercut his recusal claim because it was not based on the affidavit:
“Your Honor, but that’s not what this motion is about. The motion is not about the
affidavit. The motion is about what was said in the courtroom.” Id. at 2957.
Yet despite this disclaimer, Mr. Martinez on appeal seeks to rely on the
affidavit’s averments to support his recusal claim. In this regard, Mr. Martinez
argues that the district court became “apprised of threats against it by Mr. Martinez
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and other SNM members . . . . through the testimony of an FBI agent and a search
warrant affidavit.” Aplt.’s Opening Br. at 28 (emphasis added); see also id. at 45
(arguing that the threat was relayed to the district court by “an affidavit”).12
Insofar as Mr. Martinez now asserts that the contents of Agent Acee’s affidavit
should have alerted the judge to his connection to SNM threats against the judge and,
by extension, put the judge on notice that his impartiality might reasonably be
questioned, we deem that argument to be waived under our waiver-by-abandonment
doctrine. See United States v. Egli, 13 F.4th 1139, 1144 (10th Cir. 2021) (explaining
that waiver-by-abandonment “occurs when a party deliberately considers an issue and
makes an intentional decision to forgo it” (quoting United States v. Malone,
937 F.3d
1325, 1327 (10th Cir. 2019))). During the hearing on the Rule 33 Motion, Mr.
Martinez unequivocally stated that his “motion [was] not about the affidavit,” R.,
Vol. 4, at 2957, after the parties agreed that the district judge almost certainly would
not have had access to the affidavit. In our view, Mr. Martinez “deliberately
12
Setting the stage for this argument, in the “Issues Presented” section of
his appellate brief, Mr. Martinez asks:
Whether Mr. Martinez is entitled to a new trial because the
district court failed to recuse itself after witness testimony,
a written search warrant affidavit, and significant argument
was presented during trial regarding Mr. Martinez’s,
alongside other Sindicato de Nuevo Mexico members,
alleged threat to kill the presiding judge and to “light up the
courtroom” during trial.
Aplt.’s Opening Br. at 2 (emphasis added).
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consider[ed]” the affidavit’s role in his recusal claim and “ma[de] an intentional
decision to” to shift the judge’s focus elsewhere—which Mr. Martinez seemingly
reasoned would maintain the vitality of his recusal claim, despite the judge’s lack of
access to the affidavit. Malone, 937 F.3d at 1327; cf. United States v. Cruz-
Rodriguez, 570 F.3d 1179, 1185 (10th Cir. 2009) (“[I]t is patent that, viewed as a
whole, [the defendant’s] intentional litigation conduct . . . effected a waiver of any
challenge that [the defendant] may have had . . . . Indeed, this is tantamount to the
classic waiver situation where a party ‘actually identified the issue,’ ‘deliberately
considered’ it, and then affirmatively acted in a manner that ‘abandoned any claim’
on the issue.” (quoting United States v. Zubia-Torres,
550 F.3d 1202, 1205–06 (10th
Cir. 2008))).
Indeed, Mr. Martinez’s unequivocal “disavow[al]” of the affidavit during the
motion hearing is a fact that is not lost on the government here on appeal; the
government states that “it is not clear how [Mr.] Martinez wants [us] to treat the
affidavit.” Aplee.’s Resp. Br. at 50. To be sure, the government does not expressly
urge us to disregard on waiver grounds Mr. Martinez’s reliance on the affidavit’s
averments. However, we “are not obliged to apply forfeiture principles to the
government’s briefing omission” in failing to expressly urge us to find waiver.
United States v. McGehee, 672 F.3d 860, 873 n.5 (10th Cir. 2012). And, in light of
Mr. Martinez’s clear and unequivocal statements, we are not inclined to apply those
forfeiture principles to the government’s briefing here.
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Moreover, though the district court judge acknowledged reviewing certain
highlighted pages of the affidavit that his staff provided to him, the court framed Mr.
Martinez’s recusal claim as relating to Agent Acee’s testimony. See R., Vol. 1, at
301 (stating that one of the “primary issues” in the motion for new trial was whether
“Special Agent Brian Acee’s testimony on the first day of the evidentiary portion of
the trial about an alleged threat . . . made against . . . the Court raises reasonable
questions about the Court’s impartiality”); id. at 346 (noting that one of the “two
arguments” of Mr. Martinez concerned whether “the Court should have recused
itself . . . when . . . [Agent] Acee testified that [Mr.] Martinez allegedly was
connected to a threat against the Court”). Like the district court judge, that in-court
testimony of Agent Acee also will be our focus here.13
13
In any event, a reasonable observer—fully aware of the facts—would be
very unlikely to expect the district court judge here to be aware during the trial of the
averments of Agent Acee’s affidavit—as they related to Mr. Martinez’s connection to
SNM’s threats against the judge. Recall that the parties agreed during the hearing
that it was virtually certain that the district court judge did not have access to the
whole affidavit on the day Agent Acee testified. And the district court judge
recalled, at most, seeing certain highlighted pages from the affidavit that his staff
provided to him. But neither the judge nor his staff—including his two law clerks
who “briefly saw” the affidavit—concluded, based on their cursory reviews of the
affidavit, that Mr. Martinez was connected to SNM’s threats against the judge. R.,
Vol. 1, at 320. As the court noted, the affidavit mentioned Mr. Martinez “only in a
couple [of] paragraphs out of the ninety-eight pages.” Id. at 350. A reasonable
observer would have been aware of these circumstances, in addition to understanding
the fast-moving trial environment in which the district court judge learned of the
Acee Affidavit and the fact that it contained information regarding SNM’s threats.
Cf. id. at 351 (distinguishing Greenspan from the circumstances he faced, the district
court judge noted, among other things, that “trial, especially a trial taking place in
March 2021 during the pandemic, is a fast-paced environment where the Court does
not have the time and the brain power to sift through all the facts that the parties have
at their disposal where the parties do not raise the issue”). In our view, it is very
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In sum, we exercise our discretion to deem this affidavit dimension of Mr.
Martinez’s recusal claim waived, and consider the merits of that claim in the light of
the testimony that the district court judge heard in the courtroom. And we conclude
that a reasonable observer would not have expected the district court judge to know
from this testimony about Mr. Martinez’s connection to SNM’s threats against him.
Consequently, a reasonable observer would have had no reason to question the
district court judge’s impartiality in presiding over the trial.
ii. Application
A reasonable observer’s conclusion that the district court judge would not have
been expected to know of Mr. Martinez’s connection to SNM threats against him is
understandable considering the scattershot, imprecise testimony regarding the threats
and Mr. Martinez’s own failure to raise the recusal issue.14 Consider the
unlikely that a reasonable observer would have expected the district court judge to be
aware of the contents of the Acee affidavit during the trial. Nevertheless, it is
sufficient for resolving this appeal to conclude that Mr. Martinez has waived an
argument to the contrary, and we do not definitively opine on the matter.
14
Indeed, Mr. Martinez apparently failed to make the connection himself
because he predicated his motion for a mistrial on the government’s “failure to
disclose the information that Agent Acee testified to and was elicited on cross about
the [arrests of SNM members] that happened this morning,” R., Vol. 4, at 859—not
on recusal considerations. Akin to the district judge, we might fairly ask: if Mr.
Martinez failed to discern any recusal implications in Agent Acee’s testimony, why
should a reasonable observer have expected the district court judge to do so? See id.,
Vol. 1, at 351 (“The Court is not criticizing [Mr.] Martinez for no[t] raising the
recusal issue, but if [Mr.] Martinez did not think about it, he can hardly criticize the
Court for not raising the issue sue sponte.”). As the government points out, Agent
Acee’s testimony did not explicitly link Mr. Martinez to threats against the district
court judge.
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circumstances surrounding the testimony. The issue of SNM’s threats initially arose
in the context of witness intimidation after Agent Acee testified that he had arrested
several SNM members the morning of trial. That testimony prompted a sidebar
during which the prosecutor advised that the arrests “relate[d] to this case, but not
directly to the defendant” and pertained to “threats against a witness.” R., Vol. 4, at
810 (emphasis added). Mr. Martinez then requested discovery related to the arrests,
and the prosecutor supplied him with a copy of the sealed warrant affidavit, which
detailed SNM’s efforts to intimidate witnesses, and their threats against agents,
prosecutors, and, finally, the presiding district judge. Agent Acee, however, neither
read the ninety-eight-page affidavit aloud in court nor testified about threats against
the presiding district judge on direct examination. And the prosecutor refrained from
soliciting information related to the affidavit on direct examination.
Rather, on cross-examination, Mr. Martinez asked Agent Acee if he
“recall[ed]” mentioning “a plot to kill FBI agents and prosecutors” on “direct.” Id. at
834. Agent Acee responded that he was “intimately familiar with those threats” and
then affirmed—in response to further questioning—that Mr. Martinez was “involved
with a plot to assassinate FBI agents and federal prosecutors.” Id. at 834–35. Mr.
Martinez then turned his cross-examination to a different topic relating to
cooperating witnesses. Eventually, Mr. Martinez inquired: “[S]o I just wanted to go
and . . . close off the threats against FBI agents and prosecutors, just for
completeness. I think there was a judge’s name . . . floated on one of those; is that
correct?” Id. at 842. “Yes,” Agent Acee confirmed, before testifying that he
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“arrested four people th[at] morning” on “charges arising from the threats against
FBI agents, prosecutors.” Id.
As the transcript of his testimony reveals, Agent Acee connected Mr. Martinez
to threats against “FBI agents and prosecutors”—not judges. Id. at 834. And, more
specifically, when Agent Acee did testify about a threat against an unnamed judge, he
did not connect that threat to Mr. Martinez. Thus, in our view, a reasonable observer
would not have been inclined to expect the district court judge—based on this
testimony—to connect Mr. Martinez to SNM’s threats against him.15
This conclusion eviscerates Mr. Martinez’s argument, insofar as it is based on
Greenspan. That is because whereas a reasonable observer would not have expected
the district court judge here to have any knowledge of Mr. Martinez’s connection to
SNM’s threats against him based on Agent Acee’s testimony, the district court judge
in Greenspan undisputedly possessed actual knowledge of the defendant’s death
threats against him and his family and, even more, acted to mitigate the risk that the
15
That the district court judge—in retrospect, after considering the motion
for new trial and the arguments of counsel in a hearing on that motion, and after
“looking back” at the trial testimony of Agent Acee and events of that trial day—
subjectively believed that he could have “parse[d] the testimony and realize that, read
in context, [Agent] Acee’s testimony indicates that [Mr.] Martinez was part of the
discussions to threaten [him],” R., Vol. 1, at 351 n.19, has no material impact on our
conclusion. The judge was unequivocal in observing that “[Agent] Acee did not
explicitly state that [Mr.] Martinez was involved in the threat against [the district
judge].” Id. More importantly, the focus of the inquiry is what a reasonable observer
would have expected the judge to know during the period that he was presiding over
the trial. His subjective belief about what he personally was able to discern after the
trial—once the recusal issue was presented to him and Mr. Martinez had the
opportunity to offer argument about it—is simply not germane to the analysis.
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threats would materialize. Specifically, recall that in Greenspan, “[t]he trial court
was aware” at the time of Mr. Greenspan’s sentencing hearing of allegations that Mr.
Greenspan had conspired to kill the district judge or members of his family. 26 F.3d
at 1005. Owing to that awareness, the district judge “expedited the [sentencing]
hearing in order to get [Mr. Greenspan] into the federal penitentiary system, where he
c[ould] be monitored more closely” and “refused to continue the sentencing hearing
at the request of defendant’s counsel, who had been appointed only two days before
the expedited sentencing date.”
Id. (internal quotations omitted). We concluded that
under the “unique circumstances” of the judge having “learned of an alleged
conspiracy [involving Mr. Greenspan] to assassinate him from the FBI,” the “trial
judge should have recused himself from sentencing [Mr.] Greenspan.”16
Id. at 1006.
16
The district judge here said that he did not “read Greenspan to mandate
recusal anytime there is a serious threat” and that the case “emphasizes repeatedly”
the trial court’s action in the face of the death threat to accelerate the sentencing
proceedings of the defendant—making that decision effectively a “plus” factor
necessitating the recusal. R., Vol. 1, at 354; see id. at 347 (noting that “the Court
does not read Greenspan to create a per se rule that a judge must recuse when it
becomes aware of a legitimate threat”). This interpretation of Greenspan led the
judge to identify as a discrete factor cutting against Mr. Martinez’s argument for
recusal the fact that he had not “taken any action based on the threat that raises
questions about the Court’s impartiality.” Id. at 353–54; see 354 (“Here, the Court
has not taken, nor is there is a suggestion that the Court has taken, any action either
to expedite trial proceedings to mitigate the threat that [Mr.] Martinez poses or
rule[d] against [Mr.] Martinez because of the alleged threat, and, under Greenspan,
the mere specter of a serious threat, without more, is not sufficient reason for a court
to recuse.”).
It is quite true that Greenspan does not require a judge to recuse in each and
every instance that a serious threat—including a death threat—is lodged against him.
Indeed, Greenspan says as much: “[I]f a judge concludes that recusal is at least one
of the defendant's objectives (whether or not the threat is taken seriously), then
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Viewed through the eyes of the reasonable observer, the circumstances here could not
be further away from this.
In sum, we conclude that a reasonable observer would not have expected the
district court judge to know from the events of trial—specifically, Agent Acee’s
testimony—about Mr. Martinez’s connection to SNM’s threats against him.
Consequently, a reasonable observer would have had no reason to question the
district court judge’s impartiality in presiding over Mr. Martinez’s trial. On this
basis, we conclude that the district judge did not abuse his discretion in rejecting Mr.
section 455 will not mandate recusal because that statute is not intended to be used as
a forum shopping statute.” 26 F.3d at 1006. However, we respectfully disagree with
the district judge’s view that, under Greenspan, a serious threat against a judge,
without more, cannot be sufficient to warrant recusal under § 455. Indeed,
Greenspan’s language itself suggests to the contrary; it speaks of the necessity for the
judge to recuse, before even mentioning the court’s decision to mitigate the risk of
the defendant’s threats through accelerating his sentencing proceeding. See
26 F.3d
at 1006 (“The court concludes that under these unique circumstances, the trial judge
should have recused himself from sentencing [Mr.] Greenspan. The judge learned of
the alleged threat from the FBI, and there is nothing in the record to suggest the
threat was a ruse by the defendant in an effort to obtain a different judge. . . . In a
case like the present, where there is no inference that the threat was some kind of
ploy, the judge should have recused himself pursuant to section 455(a) and allowed
another judge to sentence [Mr.] Greenspan.”). Moreover, we expressly noted in
Greenspan that there were “unique circumstances” at play there.
Id. This strongly
suggests that it would be ill-advised to infer from that case—as the district judge
appeared to do here—a universally applicable “plus” factor that must exist beyond a
serious threat in order to justify recusal. R., Vol. 1, at 354. Moreover, any decisional
approach that seeks to identify and apply universally applicable factors in the recusal
analysis would be in tension with our precedent that counsels that “cases within
§ 455(a) are extremely fact driven ‘and must be judged on [their] unique facts and
circumstances more than by comparison to situations considered in prior
jurisprudence.’” Nichols,
71 F.3d at 351 (alteration in original) (quoting Jordan,
49
F.3d at 157); accord Wells,
873 F.3d at 1251.
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Martinez’s recusal claim to the extent that it pertains to his work in presiding over
the trial.
b. Whether the District Court Judge Should Have
Recused from the Sentencing
Finally, in support of his recusal claim as it relates to his sentencing
proceeding, Mr. Martinez offers nothing more than bald, conclusory assertions,
which only are made in tandem with his recusal arguments regarding the trial. In
other words, he offers no discrete recusal arguments relating to his sentencing.
Specifically, Mr. Martinez maintains that “there is little doubt that a reasonable
person would conclude that [the threats discussed in Agent Acee’s testimony and
affidavit] were of such a serious nature as to call into question the propriety of his
trial and sentence.” Aplt.’s Opening Br. at 45. And to conclude his argument, he
asserts the following: “The court[’]s subjective understanding of those threats is
irrelevant. It was an abuse of discretion to deny Mr. Martinez’s motion for a new
trial because the threats objectively call into question the propriety of Mr. Martinez’s
trial and sentence.” Id. at 46; see also id. at 29 (asserting conclusorily in his
“Summary of Argument” section that SNM’s threats involving Mr. Martinez were
“serious” and “result[ed] in a reasonable, objective person legitimately questioning
the impartiality and propriety of Mr. Martinez’s trial and subsequent sentence”).
The government is correct in asserting that, though Mr. Martinez nominally
raises “the potential recusal from his sentencing,” he has failed to develop a
meaningful argument regarding that issue. Aplee.’s Resp. Br. at 46 n.9. This lack of
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a meaningful argument in itself might justify us in deeming Mr. Martinez’s
sentencing-related recusal claim waived. See, e.g., United States v. Pursley, 577 F.3d
1204, 1232 n.17 (10th Cir. 2009) (“Under our precedent, this skeletal reference is
insufficient to raise the ex parte/disclosure concern as a discrete appellate issue.
Accordingly, we appropriately deem it to be waived.” (citation omitted)); Bronson,
500 F.3d at 1105 (observing that “cursory statements, without supporting analysis
and case law” are not the kind of briefing that preserves arguments for review). But
there is more.
Unlike Mr. Martinez’s briefing, the district court judge separately addressed
the question of recusal relating to Mr. Martinez’s sentencing proceeding and offered
discrete reasons why he deemed there to be no need for recusal. Though Mr.
Martinez does quarrel generally with one of them—i.e., the district judge’s allegedly
subjective understanding of the severity (or lack thereof) of the threats against him—
Mr. Martinez notably fails to address another key reason why the district judge
rejected his recusal claim regarding sentencing.17 Specifically, the district judge
reasoned that owing to the mandatory life sentence attached to Mr. Martinez’s
VICAR conviction (i.e., Count 1), an objective, reasonable observer would not
question his impartiality in imposing sentence on Mr. Martinez because the
17
Recall that in justifying its decision not to recuse, the district court also
explained that Mr. Martinez’s “alleged threat against the Court [was] not as serious
as in Greenspan” and Mr. Martinez had “not allege[d] that the Court . . . t[ook] any
action against him because of the threat.” R., Vol. 1, at 356.
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mandatory sentence deprived him of sentencing discretion.18 Mr. Martinez’s failure
to address this lack-of-discretion rationale of the court dooms his recusal claim as to
his sentencing.
Our law is clear: “The first task of an appellant is to explain to us why the
district court’s decision was wrong.” Nixon v. City & Cnty. of Denver, 784 F.3d
1364, 1366 (10th Cir. 2015). Mr. Martinez has failed in this task. In particular, he
has waived any argument challenging the district court judge’s lack-of-discretion
rationale. And, absent such a challenge, we may uphold the district court judge’s
ultimate decision not to recuse from Mr. Martinez’s sentencing without reaching the
merits. See, e.g., Rivero v. Bd. of Regents of Univ. of New Mexico,
950 F.3d 754, 763
(10th Cir. 2020) (“[R]ather than address the merits, we choose to affirm the district
court’s rejection of [the plaintiff’s] motion to recuse on the ground that his opening
brief on appeal never challenges the rejection of the motion on the ground of
untimeliness. . . . If the district court states multiple alternative grounds for its ruling
and the appellant does not challenge all those grounds in the opening brief, then we
may affirm the ruling.”).
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s judgment as to Mr.
Martinez’s convictions and sentence.
18
Notably, during the district court’s hearing on the Rule 33 Motion, Mr.
Martinez “agreed that, although Counts 2 and 4 have discretionary sentences, those
sentences will not ‘change the outcome of whether he’s released.’” R., Vol. 1, at
333.
93
