United States v. Saloman Martinez ( 2020 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0705n.06
Case No. 19-5965
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Dec 17, 2020
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE EASTERN DISTRICT OF
SALOMAN MARTINEZ, ) KENTUCKY
)
Defendant-Appellant. )
Before: SUTTON, BUSH, and MURPHY, Circuit Judges.
SUTTON, Circuit Judge. Saloman Martinez, a federal inmate at Big Sandy and a member
of the Mexikanemi prison gang, allegedly stabbed a rival gang member with a shank. A jury
convicted Martinez of assault with a dangerous weapon with intent to commit bodily harm. See
18 U.S.C. § 113(a)(3). Martinez appeals, arguing that the district court botched an evidentiary
ruling and that the jury botched the guilt finding. We affirm.
I.
In the summer of 2018, two members of the Mexikanemi prison gang assaulted a rival
Arizona Mexican Mafia gang member in a laundry room inside Big Sandy, a maximum-security
federal penitentiary that is “not a place for choir boys.” R.180 at 39. Another Arizona Mafia
member witnessed the episode and tried to intervene. Two Mexikanemi gang members, Saloman
Martinez and Eric Flores, were on the lookout for that possibility. They ambushed this other rival
Case No. 19-5965, United States v. Martinez
gang member, and he ended up “covered in blood,” the product of large, visible stab wounds.
R.180 at 32. To halt the mayhem, a correctional officer sprayed the attackers with a chemical
irritant.
Correctional officers set out to determine who stabbed whom. Someone identified Flores
as one of the attackers. To identify the second assailant, four correctional officers reviewed video
footage of the incident and, after doing so, agreed that it was Martinez.
A federal grand jury indicted Martinez and Flores for assaulting the victim with a
dangerous weapon with intent to commit bodily harm. See 18 U.S.C. § 113(a)(3). The jury found
them both guilty of the assault charge. The district court sentenced Martinez to 100 months and
Flores to 110 months. This court recently resolved Flores’s appeal. United States v. Flores, 974
F.3d 763 (6th Cir. 2020).
II.
Evidentiary ruling. Martinez challenges the admission of fact and opinion testimony by
Lieutenant Johnson, a long-serving investigator at Big Sandy, on several grounds. He first disputes
the relevance of Lieutenant Johnson’s testimony about gang characteristics, who belonged to
which gang, and Martinez’s motive to commit the assault. Abuse-of-discretion review applies.
See United States v. Kilpatrick, 798 F.3d 365, 378 (6th Cir. 2015).
None occurred. Recall the core issue at trial: Who was the assailant? In view of that issue,
Lieutenant Johnson permissibly testified that he knew Martinez, that he viewed the video of the
assault, and that he recognized Martinez as the second assailant. To his credit, Martinez does not
challenge the relevance of this testimony.
Martinez instead disputes the relevance of Lieutenant Johnson’s testimony about the gangs
at Big Sandy, how they operated, and how they handled rival gangs. But under the modest
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relevance requirements of Rule 401 of the Federal Rules of Evidence, testimony about “gang
affiliation is relevant where it demonstrates the relationship between people and that relationship
is an issue in the case.” United States v. Ford, 761 F.3d 641, 649 (6th Cir. 2014). Any evidence
tending to show that Martinez was one of the assailants passes this low bar. See United States v.
Whittington, 455 F.3d 736, 738 (6th Cir. 2006). Lieutenant Johnson, for example, testified that he
watched Martinez on video walk with the “general” of Mexikanemi soon after the attack. R.179
at 47, 49–50. It was common practice, he testified, for Mexikanemi members to escort their leader
after a violent assault. That testimony made it more likely that Martinez was a member of the gang
that committed the assaults, and more likely that he was the assailant.
The same goes for Lieutenant Johnson’s testimony that Mexikanemi and Arizona Mafia
gang members refused to be placed in the same cells. That explains why an attack on an Arizona
Mafia member might come from a member of the Mexikanemi gang. Evidence about Martinez’s
motive was relevant too. The district court did not err in admitting Lieutenant Johnson’s testimony
about why the victim and the attacker’s gang affiliations provided a potential motive for the assault.
Although motive is not an element of 18 U.S.C. § 113(a)(3), that was not the point. The evidence
supported the government’s theory that Martinez committed the attack. Someone with a motive
to hurt someone might be the person who hurt him.
Martinez adds that, even if Lieutenant Johnson’s testimony passed the minimum relevance
threshold, it was unduly prejudicial. A district court “may exclude relevant evidence if its
probative value is substantially outweighed by a danger of . . . unfair prejudice.” Fed. R. Evid.
403. Abuse-of-discretion review, again, applies. See United States v. Ray, 803 F.3d 244, 257 (6th
Cir. 2015).
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None, again, occurred. It is commonplace to admit evidence of this sort over a Rule 403
objection. For the reasons mentioned above, gang membership and gang characteristics often help
show why an inmate would stab a rival gang member. See Ford, 761 F.3d at 649–50; United States
v. Gibbs, 182 F.3d 408, 430 (6th Cir. 1999); United States v. Archuleta, 737 F.3d 1287, 1293–95
(10th Cir. 2013).
That is just what happened. Lieutenant Johnson linked Martinez’s membership in
Mexikanemi with the first attack, then explained how the gang’s structure and characteristics
influenced Martinez’s conduct. The district court guarded against any undue prejudice by
instructing the jury that it could consider the gang affiliation evidence “only as it relates to the
government’s assertions about that particular defendant’s motive and identity regarding the
incident at issue.” R.180 at 236. On top of that, the court instructed the jury that it need not
“accept this witness’s opinion[],” and that it could decide how much weight to give Lieutenant
Johnson’s opinion testimony based on his “qualifications” and his chain of reasoning. R.179 at
64.
Martinez also argues that Lieutenant Johnson’s expert testimony should have been
excluded under Evidence Rule 702 because it turned on inadmissible hearsay, violated the
Confrontation Clause, and lacked a foundation. Having failed to raise these challenges in the
district court, he must overcome the strictures of plain-error review. He must show (1) an error
(2) that was self-evident, (3) that affected the outcome of the trial, and (4) that seriously
undermined the fairness of the trial and the integrity of the judicial system. United States v.
Crawford, 943 F.3d 297, 308 (6th Cir. 2019).
As a general and initial matter, no error occurred with respect to most of these objections
because Lieutenant Johnson primarily testified as a fact witness. As someone who knew Martinez,
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knew the prison, knew who belonged to which gang, and as someone who watched the videotape,
Lieutenant Johnson was free to testify about what he saw and knew—and Martinez was free to
cross-examine him at each step along the way.
Even on their own terms, these objections fall short. No error occurred with respect to the
hearsay. As the district court aptly put it, the Lieutenant’s “familiarity with MEXIKANEMI”
formed “a foundational element of his proposed testimony.” R.69 at 3 n.3. That foundation was
based on firsthand information about the gang from working at Big Sandy, not hearsay. But even
to the extent hearsay creeped into the mix, experts may use hearsay to form the basis of their
testimony. Fed. R. Evid. 703; Engebretsen v. Fairchild Aircraft Corp., 21 F.3d 721, 728–29 (6th
Cir. 1994).
The Confrontation Clause claim succumbs to similar responses. Most of Lieutenant
Johnson’s testimony, expert or otherwise, turned on firsthand observations from a 19-year career.
At any rate, the Confrontation Clause applies only to “testimonial” evidence. Crawford v.
Washington, 541 U.S. 36, 53–54 (2004). To meet that condition, the evidence must have been
designed to “bear testimony” against the accused. Id. at 51 (quotation omitted). Lieutenant
Johnson relied on the videotape of the incident and his knowledge of the Big Sandy gangs for
nearly all of his testimony. No evidence shows, and Martinez does not supply any, that the
Lieutenant relied on testimonial evidence from anyone. See United States v. Warman, 578 F.3d
320, 346 (6th Cir. 2009). But even if that were not the case, experts may rely on testimonial
evidence in forming an independent opinion that may be tested through cross-examination. See
United States v. Rios, 830 F.3d 403, 418 (6th Cir. 2016); United States v. Johnson, 587 F.3d 625,
635 (4th Cir. 2009); United States v. Vera, 770 F.3d 1232, 1237 (9th Cir. 2014); United States v.
Pablo, 696 F.3d 1280, 1288 (10th Cir. 2012).
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As for Martinez’s claim that Lieutenant Johnson’s expert testimony lacked an evidentiary
foundation, see Fed. R. Evid. 702, that falls short as well. Most of the testimony Lieutenant
Johnson offered related to facts he observed, not expert opinions he developed. No error occurred
anyway, even if it’s fair to say that some of his statements amounted to expert testimony.
Lieutenant Johnson based his testimony on his lengthy experience tracking gangs and their habits
at Big Sandy. He maintained “daily contact” with Martinez as well as other members of gangs.
R.179 at 33. There is nothing wrong with “a gang expert’s testimony” if he premises it “on
significant experience with the gang about which the expert is testifying.” United States v.
Ledbetter, 929 F.3d 338, 349 (6th Cir. 2019) (quotation omitted). That’s what Lieutenant Johnson
did.
United States v. Freeman, 730 F.3d 590 (6th Cir. 2013), is not to the contrary. It ruled that
an agent called to testify about his “personal impressions” of “recorded conversations” did not
base his testimony on firsthand knowledge because he failed to identify “personal experiences that
led him to obtain his information.” Id. at 594, 596. In that case, unlike this one, the government
conceded that the officer’s testimony “lacked the [firsthand] knowledge required to lay a sufficient
foundation for his testimony.” Id. at 597. Lieutenant Johnson grounded his gang-related testimony
in personal knowledge gathered over a 19-year career. See Kilpatrick, 798 F.3d at 381.
As for Martinez’s cursory claim that the district court should have excluded the
Lieutenant’s testimony under Evidence Rule 701, he forfeited the claim by failing to brief the issue
in any detail in his opening brief. See Montgomery v. Kraft Foods Glob., Inc., 822 F.3d 304, 312
(6th Cir. 2016). He never explains how the district court circumvented Rule 701 in his opening
brief, and a reply brief is not the place to fill that gap. Martinez, like all appellants, “abandons all
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issues not raised and argued in [his] initial brief on appeal.” Bard v. Brown Cnty., 970 F.3d 738,
751 (6th Cir. 2020) (quotation omitted).
Martinez separately complains that Lieutenant Johnson improperly gave dual fact and
opinion testimony. But an officer may testify as a fact and opinion witness as long as the court
cautions the jury about the two-headed nature of the witness’s testimony. Rios, 830 F.3d at 414–
15. The court did just that.
Sufficiency of the Evidence. Martinez claims that insufficient evidence supports the
conviction. That requires us to determine “whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Martinez does not carry this “heavy burden.” United States v. Jackson, 473 F.3d 660, 669
(6th Cir. 2007) (quotation omitted). Four correctional officers testified that Martinez stabbed the
victim. Each officer reviewed the surveillance footage, and each officer identified Martinez as one
of the two assailants. The correctional officer who sprayed Martinez with the chemical irritant
testified that, “if you watch the video, you [can] see when I sprayed him [with pepper spray],” and
then you can watch him “wipe[] . . . off his face and then go[] [back] to his [assigned] cell.” R.179
at 138. Another officer testified that, after reviewing the footage, he had “no doubt” that Martinez
attacked the victim. R.180 at 85. The United States also introduced evidence documenting the
cellblock’s layout and the location of Martinez’s assigned cell. And it tendered the surveillance
video to the jury, which had a chance to watch the video for itself. It is true that no officers saw
Martinez as he was about to stab the victim. Would that they had; they might have stopped the
attack. But the jury had plenty of reliable evidence to find that Martinez committed the assault.
We affirm.
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