United States v. Robert Martinez

883 F.2d 750 58 USLW 2210 UNITED STATES of America, Plaintiff-Appellee, v. Robert MARTINEZ, Defendant-Appellant. No. 87-1094. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 4, 1988. Decided Aug. 23, 1989. James D. Comack, Honolulu, Hawaii, for defendant-appellant. John F. Peyton, Jr., Asst. U.S. Atty., Honolulu, Hawaii, for plaintiff-appellee. Appeal from the United States District Court for the District of Hawaii. Before WALLACE, REINHARDT and NOONAN, Circuit Judges. NOONAN, Circuit Judge: 1 Robert ("Bobby") Martinez was convicted on four counts of importing heroin into the United States in violation of 21 U.S.C. Sec. 960 (a)(1) and one count of possession with intent to distribute heroin in violation of 21 U.S.C. Secs. 846 and 841(b)(1)(B)(i). He appeals from denial of his motion for a new trial. The appeal involves a question of constitutional law new in this circuit: what constitutes an effective waiver by a criminal defendant of his fundamental personal right to testify in his own behalf. FACTS 2 The evidence presented by the government established that in September and October 1986 United States Customs in Hawaii intercepted four packages…

dissenting.

Bobby Martinez sought to testify in his own defense. He repeatedly asked his attorney to put him on the stand, but he was refused the opportunity to testify in absolute terms. “I told Mr. Martinez that I was not going to call him as a witness in his defense. He expressed to me the desire to testify; and I said no way, that I thought it was suicidal for him to testify, and it would be an error in judgment; and that was it. I just made the decision he was not going to testify, I refused to call him, and that was the way it went down.” (testimony of Michael Weight). 1 Trial *762 counsel neither phrased his refusal in terms of advice nor intimated that Martinez possessed any options except succumbing to the dictates of counsel. Neither the trial court nor the Assistant United States Attorney ever suggested to Martinez that he could do more than bear silent witness to his own proceeding. The record before us reveals that appellant was neither informed nor independently aware that he was free to override the considered choice of counsel. Yet, the majority holds that Martinez waived his fundamental right to testify in his own defense.

This court unanimously concludes that…

Robert (“Bobby”) Martinez was convicted on four counts of importing heroin into the United States in violation of 21 U.S.C. § 960 (a)(1) and one count of possession with intent to distribute heroin in violation of 21 U.S.C. §§ 846 and 841(b)(l)(B)(i). He appeals from denial of his motion for a new trial. The appeal involves a question of constitutional law new in this circuit: what constitutes an effective waiver by a criminal defendant of his fundamental personal right to testify in his own behalf.

FACTS

The evidence presented by the government established that in September and October 1986 United States Customs in Hawaii intercepted four packages identically wrapped and addressed in the same handwriting, with the same misspelled word, mailed from Changmai, Thailand. Each package contained a carved wooden elephant. Each elephant was packed with heroin. The four packages were addressed to four different people at three different addresses. The persons at the different address did not know each other. Their only tie was a common acquaintance with Bobby Martinez. None of the addressees had ordered or expected to receive wooden elephants.

*752 A controlled delivery was made of the…