United States v. Jose Martinez

MEMORANDUM

Appellant Jose “Joe” Martinez was convicted under 18 U.S.C. § 2243 (b) of six counts of sexual abuse of inmates he guarded at a federal penitentiary in Phoenix.

1. The district court did not abuse its discretion in denying Martinez a discovery order and subpoena for employment records of other guards who allegedly engaged in sexual conduct with inmates. A defendant seeking discovery in a selective prosecution case must provide, “some evidence tending to show the existence of the essential elements of the defense,” namely, “discriminatory effect and discriminatory intent.” United States v. Armstrong, 517 U.S. 456, 468 , 116 S.Ct. 1480 , 134 L.Ed.2d 687 (1996) (quoting United States v. Berrios, 501 F.2d 1207, 1211 (2nd Cir.1974)). Such burden requires “a credible showing of different treatment of similarly situated persons.” Id. at 470, 116 S.Ct. 1480 . Although Martinez’s subpoena request named five other prison guards — two black males and three females — who he claims were not prosecuted for similar conduct, he has not shown that those guards were in fact “similarly situated.” Id.

Martinez was initially charged with six counts of sexual abuse of a ward, 18 U.S.C. §…