United States v. Salazar

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4804
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARTIN F. SALAZAR,
Defendant - Appellant.
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ALLIANCE FOR PATIENT SAFETY; E-ACCOUNTABILITY FOUNDATION;
GOVERNMENT ACCOUNTABILITY PROJECT; INTEGRITY INTERNATIONAL;
NO FEAR COALITION; OSC WATCH; OPENTHEGOVERNMENT.ORG;
PARENTADVOCATE.ORG; SEMMELWEIS SOCIETY; U.S. BILL OF RIGHTS
FOUNDATION,
Amici Supporting Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Aiken. Margaret B Seymour, District Judge.
(1:06-cr-00123-MBS)
Submitted: May 7, 2009 Decided: July 7, 2009
Before KING, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mario A. Pacella, STROM LAW FIRM, LLC, Columbia, South Carolina,
for Appellant. W. Walter Wilkins, United States Attorney, Dean
A. Eichelberger, Assistant United States Attorney, Columbia,
South Carolina, for Appellee. Thomas M. Devine, GOVERNMENT
ACCOUNTABILITY PROJECT, Washington, D.C., for Amici Supporting
Appellant.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Martin Salazar appeals his conviction following a jury
trial of two counts of making false statements or
representations to the United States Government, in violation of
18 U.S.C. § 1001 (2000). Salazar was convicted of Counts Two
and Four of the indictment against him. Count Two alleged that,
while working as an engineer at the Department of Energy’s
(“DOE’s”) Savannah River Site (a nuclear facility near Aiken,
South Carolina), Salazar submitted a questionnaire to DOE, for
the purpose of maintaining his top secret security clearance, in
which he falsely stated that he was born in Nogales, Arizona,
rather than Nogales, Mexico. Count Four alleged that, in 2005,
Salazar submitted an application for early retirement to DOE in
which he falsely stated that he was born on January 30, 1954,
rather than January 30, 1958.
Salazar raises five issues on appeal: (1) whether the
district court abused its discretion in denying his motion for
new trial as to Count Two; (2) whether the district court abused
its discretion in denying his motion for new trial as to Count
Four; (3) whether the district court abused its discretion in
failing to hold an evidentiary hearing regarding his motion for
new trial; (4) whether the evidence at trial was sufficient to
support his conviction under Count Two; and (5) whether the
district court erred by admitting the testimony of a lay
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witness, Robert Ruple, due to the danger of unfair prejudice.
We affirm.
I. Jurisdiction to Review Denial of Motion for New Trial
In a criminal case, a defendant’s notice of appeal
must be filed within ten days after the entry of the judgment or
order being appealed. Fed. R. App. P. 4(b)(1)(A)(i). A notice
of appeal filed before the district court disposes of any of the
motions referred to in Rule 4(b)(3)(A) becomes effective upon
the later of the entry of the order denying the last such
remaining motion or the judgment of conviction, and “is
effective - without amendment - to appeal from an order
disposing of any of the motions referred to in Rule 4(b)(3)(A).”
Fed. R. App. P. 4(b)(3)(B), (C). Rule 4(b)(3)(A)(ii) refers to
a motion “for a new trial under Rule 33, but if based on newly
discovered evidence, only if the motion is made no later than 10
days after the entry of the judgment.”
The district court entered judgment against Salazar on
August 7, 2007, and he filed his notice of appeal on August 17,
2007, thereby perfecting a timely appeal of the judgment.
Salazar did not file his motion for a new trial until September
10, 2007, more than ten days after the entry of the judgment.
Because the motion for a new trial was not filed within ten days
after the judgment was entered, Salazar’s notice of appeal was
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not effective without amendment to appeal from the order denying
the motion for a new trial. The district court denied Salazar’s
motion for a new trial on April 7, 2008, and Salazar did not
file an amended notice of appeal regarding that order. Salazar
did not indicate his intent to appeal the denial of his motion
for a new trial until he filed his appellate brief in this Court
on June 5, 2008.
Salazar has failed to file a timely appeal in
accordance with Rule 4(b). While Salazar’s appeal is clearly
untimely, appeal periods in criminal cases are not
jurisdictional; rather, they are “claim-processing rules”
adopted by the Supreme Court that do not affect this Court’s
subject-matter jurisdiction. See Bowles v. Russell, 551 U.S.
205, 208-13 (2007); United States v. Frias, 521 F.3d 229, 233
(2d Cir. 2008); United States v. Mitchell, 518 F.3d 740, 744
(10th Cir. 2008). Despite the fact that the time limitations
imposed by Rule 4(b) are not jurisdictional, they “must be
enforced by th[e] court when properly invoked by the
government.” Mitchell, 518 F.3d at 744.
In the present case, we directed the parties to file
supplemental briefs addressing the timeliness issue. The
Government has not filed a motion to dismiss the appeal as
untimely and has acknowledged that it erroneously conceded the
timeliness of the appeal in its initial brief. Accordingly,
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because Salazar’s failure to comply with Rule 4(b) does not
remove this court’s jurisdiction to review the order denying his
motion for new trial, and because the Government does not
request invocation of the rule, we consider it appropriate under
the particular facts of this case to exercise our jurisdiction
to review the merits of the order.
II. Denial of Motion for New Trial as to Count Two
A district court may grant a defendant’s motion for a
new trial “if the interest of justice so requires.” Fed. R.
Crim. P. 33(a). A district court “‘should exercise its
discretion to grant a new trial sparingly,’ and . . . should do
so ‘only when the evidence weighs heavily against the verdict.’”
United States v. Perry, 335 F.3d 316, 320 (4th Cir. 2003)
(quoting United States v. Wilson, 118 F.3d 228, 237 (4th Cir.
1997)). This Court reviews the denial of a Rule 33 motion for
abuse of discretion. United States v. Adam, 70 F.3d 776, 779
(4th Cir. 1995). In order to warrant a new trial based on newly
discovered evidence, a defendant must show that: (1) the
evidence is newly discovered; (2) the defendant used due
diligence; (3) the evidence is not merely cumulative or
impeaching; (4) the evidence is material; and (5) the evidence
would probably result in an acquittal at a new trial. United
States v. Lofton, 233 F.3d 313, 318 (4th Cir. 2000). Unless the
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defendant demonstrates all five of these factors, the motion
should be denied. United States v. Chavis, 880 F.2d 788, 793
(4th Cir. 1989).
Salazar’s motion for new trial as to Count Two is
based upon his sister’s affidavit that she was present at his
birth in Nogales, Arizona. The district court reasonably found
that Salazar was not diligent in seeking such evidence from his
family members during the year after he was indicted and before
his trial began. Furthermore, the court did not abuse its
discretion in finding that the new evidence was unlikely to
result in a judgment of acquittal, in light of the Government’s
evidence that Salazar was born in Mexico, including: (1) an
official birth registration form showing that Salazar was born
in Nogales, Mexico; (2) a certified document reflecting that no
record exists of Salazar’s birth in Arizona; (3) Salazar’s 1970
application for a social security card in which he identified
Nogales, Mexico, as his place of birth; (4) an identification
card issued to Salazar in 1969 listing his place of birth as
Mexico; (5) testimony by Salazar’s ex-wife that Salazar admitted
to her that he was born in Mexico; (6) a “caddy spotlight”
written by an employee of the Augusta National Golf Course,
where Salazar was employed as a caddy, identifying Salazar’s
place of birth as Mexico, based upon Salazar’s own statements;
and (7) Salazar’s written statement that “he had always said
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that he was born in Mexico.” In light of the weight of the
evidence favoring Salazar’s conviction on Count Two and his
failure to demonstrate that he acted with due diligence in
obtaining his sister’s affidavit, the district court did not
abuse its discretion in denying his motion for new trial as to
Count Two.
III. Denial of Motion for New Trial as to Count Four
Salazar’s motion for new trial as to Count Four is
based upon the sworn statement by Doris Hixon, a human resource
specialist at the Savannah River Site who prepared Salazar’s
application for early retirement based upon the January 30,
1954, date of birth that was listed in his personnel records, in
which she indicated that she was aware in April 2004 of the
discrepancies concerning Salazar’s date of birth, contrary to
her testimony at trial. The district court found that the
evidence was not newly discovered because it was provided to
Salazar, in substance, before trial and he attempted to impeach
Hixon’s testimony with it when she testified. Furthermore, the
evidence was merely impeaching and was not sufficient to
establish an affirmative defense of entrapment by estoppel
because it established at most only that Hixon, not other DOE
employees who proposed Salazar’s early retirement, was aware of
the discrepancies between Salazar’s reported dates of birth.
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Accordingly, we conclude the district court did not abuse its
discretion in denying Salazar’s motion for a new trial as to
Count Four.
IV. Failure to Hold Evidentiary Hearing on Motion for New Trial
A district court’s denial of a motion for an
evidentiary hearing on a motion for new trial is reviewed for
abuse of discretion. United States v. Smith, 62 F.3d 641, 651
(4th Cir. 1995). The district court did not abuse its
discretion in failing to hold an evidentiary hearing because the
district court based its denial of the motion for new trial upon
Salazar’s lack of diligence in obtaining his sister’s affidavit
and the weight of the evidence that he was born in Mexico, as to
Count Two, and upon the fact that Hixon’s affidavit was not
newly discovered and was merely impeaching, as to Count Four.
Accordingly, there was no need for the district court to hold a
hearing to evaluate the evidence presented in connection with
the motion for new trial.
V. Sufficiency of the Evidence as to Count Two
When a defendant challenges the sufficiency of the
evidence, we consider whether substantial evidence, viewed in
the light most favorable to the Government, supports the jury’s
verdict. Burks v. United States, 437 U.S. 1, 17 (1978); United
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States v. Stewart, 256 F.3d 231, 249 (4th Cir. 2001).
“[S]ubstantial evidence is evidence that a reasonable finder of
fact could accept as adequate and sufficient to support a
conclusion of a defendant’s guilt beyond a reasonable doubt.”
United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996)
(citations omitted). “[W]e do not review the credibility of
witnesses and assume the jury resolved all contradictions in the
testimony in favor of the government.” United States v. Sun,
278 F.3d 302, 313 (4th Cir. 2002).
The jury’s verdict on Count Two was supported by
substantial evidence. Salazar does not contest that he claimed
to have been born in Nogales, Arizona, on the questionnaire he
submitted to DOE for the purpose of maintaining his security
clearance. The evidence that Salazar’s statement on the
questionnaire was knowingly false is persuasive, as previously
recounted. Salazar challenged the reliability of the
Government’s evidence and the credibility of its witnesses at
trial, but did not present any affirmative evidence that he was
born in Arizona, rather than Mexico. Assuming that the jury
credited the testimony of the Government’s witnesses, and
viewing the evidence in the light most favorable to the
Government, the evidence was sufficient for a reasonable jury to
find Salazar guilty beyond a reasonable doubt on Count Two. We
therefore affirm Salazar’s conviction on Count Two.
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VI. Admission of Testimony
Because Salazar did not object to the district court's
admission of Ruple’s testimony at trial, we review for plain
error. Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S.
725, 732 (1993). Under the plain error standard, Salazar must
show: (1) there was error; (2) the error was plain; and (3) the
error affected his substantial rights. Olano, 507 U.S. at 732-
34. Even when these conditions are satisfied, we may exercise
our discretion to notice the error only if the error "seriously
affect[s] the fairness, integrity or public reputation of
judicial proceedings." Id. at 736 (internal quotation marks
omitted).
A district court’s decision to admit evidence is given
broad deference and will be overruled only under extraordinary
circumstances that constitute a plain abuse of discretion.
United States v. Love, 134 F.3d 595, 603 (4th Cir. 1998). In
reviewing the admission of evidence, we construe the evidence in
the “light most favorable to its proponent, maximizing its
probative value and minimizing its prejudicial effect.” United
States v. Simpson, 910 F.2d 154, 157 (4th Cir. 1990) (quoting
Mullen v. Princess Anne Volunteer Fire Co., 853 F.2d 1130, 1135
(4th Cir. 1988)).
Ruple testified that he worked at the Augusta National
during the 2004 and 2005 seasons, and put together a written
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“spotlight” about Salazar, who was working at the Augusta
National as a caddy during that time. Ruple prepared a
spotlight of a different caddy approximately once per week in
order for the caddies to “get to know everybody else.” Salazar
approached Ruple and asked to be highlighted in a spotlight.
The spotlight was based upon a fifteen-minute interview of
Salazar conducted by Ruple. The spotlight was posted on a
bulletin board where Salazar could see it, and Salazar did not
complain that the spotlight contained any inaccurate
information. The spotlight, which was meant to be entertaining,
read in relevant part as follows:
Marteen Salazar has graced us with his presence
at the Augusta National for five years now. He is 60
years old. Marteen was born in Nogales, Mexico, the
land of Tequila and Senoritas. At three, his family
moved to Los Angeles and little Marteen became a
citizen of the United States.
Marteen has one daughter and a son from a
previous marriage. His son is a captain in the U.S.
Army Rangers. Marteen’s first love is rugby. He is
also an accomplished tennis player, at one point
holding the third seed in the California State tennis
rankings.
As we all know, Marteen has had a highly-
decorated military career, as well as a stellar
academic record. One unknown fact is that Marteen
also possess [sic] a black belt, beware his fists of
fury.
Marteen started his academic career at Long
Beach State with a BS in mechanical engineering.
Moving from that, he received his masters in nuclear
physics. At this point he is working on his doctorate
from Georgia Tech in nuclear physics.
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In between all his upper education, Marteen
still found time to become a naval officer. He was
the executive officer on multiple boats, mostly fast-
attack submarines. The executive officer, for those
that don’t know, is the second man in charge. If his
commanding officer had ever taken a bullet from a
Russian, Mr. Salazar would have been in charge of a
billion dollar war machine lurking in the depths
protecting us all.
Upon cross-examination, Ruple acknowledged that he and his co-
workers “didn’t really take [the spotlights] seriously” and did
not check the facts that the caddies reported to them. Upon
redirect examination, Ruple testified that the factual
assertions in the spotlight were based upon Salazar’s answers to
Ruple’s questions.
The district court did not err in admitting Ruple’s
testimony. Ruple acknowledged that the spotlight was a
lighthearted piece of writing and that he did not attempt to
verify the facts contained in it. Ruple’s testimony was
probative as to the issue of where Salazar was born, and this
probative value outweighed any prejudicial effect upon the
jury’s evaluation of Salazar’s character for truthfulness. We
therefore affirm the district court’s decision to admit Ruple’s
testimony.
For the reasons stated above, we affirm the district
court’s judgment and its denial of Salazar’s motion for new
trial. We dispense with oral argument because the facts and
legal conclusions are adequately presented in the materials
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before the court and argument would not aid the decisional
process.
AFFIRMED
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