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United States v. Martinez

United States Court of Appeals, Tenth Circuit

May 6, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,

          Appeal from the United States District Court for the District of Wyoming (D.C. No. 2:17-CR-00213-NDF-1)

          Neil D. Van Dalsem, Office of the Federal Public Defender, Muskogee, Oklahoma, for Defendant-Appellant.

          Timothy J. Forwood, Assistant United States Attorney (Mark A. Klaassen, United States Attorney, District of Wyoming, with him on the brief), Cheyenne, Wyoming, for Plaintiff-Appellee.

          Before HARTZ, MATHESON, and EID, Circuit Judges.


         A jury in the United States District Court for the District of Wyoming convicted Defendant Christopher Lee Martinez on one count of attempting to entice a minor to engage in illegal sexual activity. See 18 U.S.C. § 2422(b). On appeal Defendant argues that the district court (1) should have authorized funds for a forensic psychologist, (2) improperly excluded evidence of his history of mental illness, and (3) should have allowed him to present evidence of his character for truthfulness. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

         I. BACKGROUND

         A. Defendant's Arrest

         On July 22, 2017, Special Agent Brent Metcalfe of the Wyoming Division of Criminal Investigation (DCI) posted a personal advertisement on the "Casual Encounters" section listed on the Craigslist website at that time. The purpose of the posting was to ferret out those who used the Internet to arrange sexual encounters with minors. Metcalfe chose the date because of the expected influx of tourists for Cheyenne Frontier Days. The advertisement was entitled "Fresh CFD Taboo" and read: "In town with my dau. She is very eager. She wants to experience what Cheyenne has to offer. Who wants to have some 'fresh fun.'" R., Vol. 3 at 247-49. Metcalfe explained that he used the terms fresh and eager to communicate to the reader that the subject of the advertisement was young and sexually inexperienced.

         Defendant, 27 years old at the time, was one of the first to respond, sending a message shortly before 4:00 p.m. The email messages were relayed by Craigslist between the correspondents. Metcalfe posed as the father, telling Defendant that he hoped to "find a guy for my daughter, but she's younger." Id. at 256. When Defendant asked how old the girl was, Metcalfe answered that she was 12. Defendant said: "Okay. When you thinking? I'll think about it. You ain't a cop or law enforcement?" Id. at 257. Metcalfe assured him that he was not a cop and the conversation continued. It centered on whether Defendant wanted to have sexual relations with the daughter. Defendant asked Metcalfe what sexual acts he could engage in with the girl, whether he could take her virginity, and whether Metcalfe had condoms. Defendant repeatedly sought assurances that Metcalfe was not a "cop," explaining that he was nervous because the police had "popped a lot of people" during Frontier Days the previous year. Id. at 287.

         With Defendant's interest established, Metcalfe requested that they move their conversation to "Kik," an instant-messaging application that better allowed investigators to obtain Defendant's identity. Defendant agreed. After he asked Metcalfe to send him a picture of the daughter, the two agreed to exchange pictures. Metcalfe sent Defendant a picture of part of the chest of a life-like mannequin. Defendant asked for another picture of the child's full body with no face. Metcalfe refused to send additional pictures but agreed that Defendant could come to his motel to take his daughter's "V card" (referring to her virginity). Id. at 302. Defendant eventually asked to message with the daughter directly, and Metcalfe assumed the girl's identity. Defendant asked if she wanted to "lose [her] V card?" When Metcalfe asked what that meant, Defendant said "Virginity." Id. at 310. After exchanging about 100 messages over almost five hours, Defendant agreed to meet at a motel and said that he would bring a condom.

         At 8:48 p.m., Defendant arrived at the motel parking lot and messaged Metcalfe, asking him to come out. Metcalfe and several other officers exited their vehicles and arrested Defendant in his truck. He was in possession of a phone and a condom. Forensic analysis confirmed that the phone was the one used to communicate with Metcalfe on the Kik application. When interviewed by officers at the scene, Defendant admitted to sending the messages but stated that he was getting ready to call the police before he was arrested. When asked why he had a condom, he said something like, "You have to be real." Id. at 321.

         B. Pretrial Motions

         Defense counsel filed a pretrial motion under 18 U.S.C. § 3006A requesting a forensic psychologist at the government's expense. The motion stated the charge against Defendant, the trial date, the cost of a forensic evaluation and polygraph by Dr. Charles W. Dennison CP, Defendant's minimal employment history, and his lack of funds to pay Dr. Dennison. Other than stating that Defendant was on Social Security disability with a mental-health diagnosis, the motion said nothing regarding his mental health and the need for an evaluation except as follows:

Defendant was diagnosed with bipolar disorder, attention deficit disorder (ADD), schizophrenia and depression when he was 18 years old. The diagnosis was at Peak Wellness, Cheyenne, Wyoming. Defendant has a Mental Health history of attempted suicide at 18 years of age, hallucinations with the last occurrence taking place about 4-5 years ago. Defendant was prescribed Trazadone, Invega, Amitriptyline, Abilify and Fluoxetine. He is currently off medication.
. . .
Due to the nature of the charges in this matter, a forensic evaluation is necessary.

         R., Vol. 1 at 29. The district court denied the motion, saying:

Defendant failed to provide the Court with information regarding the necessity for a forensic evaluation by Dr. Dennison at Government expense. The Court routinely grants forensic evaluations in cases involving receipt of child porn, for purposes of sentencing mitigation. However, this case involves attempted enticement of a minor. . . . Given the mandatory minimum sentence in this case, it is not clear the purpose of a forensic evaluation. Defendant has failed to provide the Court with any explanation of the necessity for an evaluation, either for trial or sentencing purposes. IT IS ORDERED that Defendant's Motion for Forensic Psychologist at Government Expense is DENIED at this time based on the Court's finding that Defendant has not established the necessity for this evaluation.

R., Vol. 2 at 12 (italics added). Defense counsel did not renew the motion or later provide further justification for a forensic psychologist.

         The government then filed a motion in limine to prevent Defendant from presenting evidence of his character for truthfulness and honesty and to exclude any evidence of his mental illness. On the first issue, it argued that because the charged offense of enticement of a minor is not a crimen falsi (that is, an offense in which a lie by the defendant is one of the elements of the crime), testimony regarding Defendant's character for truthfulness was not relevant. Accordingly, it requested that Defendant's use of character evidence be limited to evidence that he is law abiding. The court agreed that Defendant had not shown a basis for offering evidence of his character for truthfulness, but said that it would later rule on specific issues related to character evidence that might arise during trial.

         On the second issue, the government contended that absent an insanity defense, evidence of Defendant's mental defects or lack of volitional control was not an allowable defense. Although the government acknowledged that evidence of mental health could be admitted to negate specific intent, it pointed out that Defendant bore the burden of showing that the proffered evidence was being offered for that purpose. This issue was addressed at the final pretrial conference, where the court gave defense counsel the opportunity to explain the purpose of introducing evidence of Defendant's mental health. Defense counsel stated:

So my plan was to introduce a very limited number of medical records that I've provided to the Government, and they basically just state that Mr. Martinez was diagnosed with bipolar, I think back in 2010; that he was prescribed medication. He's also got ADD, I believe. And the only purpose of those records is because I would have him testify and his family testify that he has these mental issues and that his mental state of mind is important because one of the elements in this case is that he obviously knowingly had to complete this act, and that goes to that element of whether or not he knowingly completed this act.
And the medical records themselves are really just to - there to corroborate what he would testify to about his own character and state of mind.

R., Vol. 3 at 34 (emphasis added). Defense counsel acknowledged that Defendant "did not plead guilty by reason of mental illness" but argued that the jury should decide "whether or not [his mental illness] affected his decision to do the things he did or not." Id. at 35. And responding to the arguments by the government, he said:

We're offering it to show his potential state of mind in general and who he is. And this is a person - and like I said, I don't know how you can - the Court or any court could preclude an individual from getting on the stand and testifying that, "Yes, I'm - you know, this is my background. I have these issues that I've dealt with. I was on medication, but I wasn't taking the medication at the time," and to describe his general makeup, I suppose.

Id. at 38.

         The court granted the motion in limine. It expressed concern that the proffered mental-illness testimony would "create[] the potential for confusion by the jury and seek[ ] to suggest a justification as opposed to a defense to any of the elements that the Government is required to prove by proof beyond a reasonable doubt." Id. at 39. It noted that this court had held "that psychological and psychiatric evidence that negates the essential element of specific intent can be admissible" but that the admission of such evidence required clear demonstration of "how such evidence would negate intent rather than merely present a dangerously confusing theory of defense more akin to justification and excuse." R., Vol. 1 at 72 (internal quotation marks omitted). The court concluded that without an expert or current medical records, Defendant lacked mental-health evidence showing "some cognitive defect precluding him from forming the specific intent for the charged offense" and thus the proffered evidence was irrelevant. Id. at 73.

         C. Trial

         The prosecution called only three witnesses at trial: Special Agent Robert Leazenby of the Wyoming DCI testified in general about the conduct of child-exploitation investigations; Agent Metcalfe testified about his communications with Defendant; and Mark Timmons of the Wyoming DCI testified about his search of Defendant's car after the arrest.

Before calling any witnesses, Defendant renewed his request to be permitted to offer mental-health evidence. He pointed to testimony by Agent Leazenby that investigators like to talk to arrestees in such cases to determine their states of mind. The prosecutor pointed out, however, that the state of mind Leazenby was referring to was whether or not the arrestee wanted to have sex with the child. When the court asked defense counsel how the mental-health evidence would relate to the instruction on the knowingly element of the offense, counsel responded that he wanted to put on the evidence simply as background evidence:
But that's who he is and that's kind of his general makeup, just as if a person was employed and is - you know, as an officer and they've been doing that for ten years. Well, in the last ten years he's been doing really nothing. Why has he been doing nothing? Because he's on [Social Security benefits], and the jury is going to know why he's on [Social Security benefits]. Well, that's why.

R., Vol. 3 at 377. The court was not persuaded. It held that while information concerning Defendant's background may be relevant for sentencing purposes, it was not relevant at the trial.

         Defendant's evidence consisted of (1) his own testimony, explaining that he was not engaged in criminal activity but, rather, was attempting to identify someone engaged in child exploitation, whom he would report to law-enforcement authorities, and (2) six witnesses who testified to his character as a law-abiding citizen.

         Defendant also unsuccessfully attempted to put on evidence of his character for truthfulness, which he claimed had been attacked during his cross-examination by the prosecution. He argued that such evidence would assist the jury in determining whether to believe his statement that he did not intend to engage in sex with a minor. The court rejected the argument, reaffirming its earlier ruling that such evidence was not relevant because the charged offense did not include an element that concerned truthfulness. It further observed that because the bulk of the evidence in the case involved contradictory statements made by Defendant before and after his arrest, testimony regarding his character for truthfulness would not be probative in helping the jury decide which if any of his statements to believe.

          II. DISCUSSION

         A. Denial of Motion to Hire Forensic Psychologist

         The Criminal Justice Act (CJA) permits a court to authorize funding for an expert witness at the government's expense:

Counsel for a person who is financially unable to obtain investigative, expert, or other services necessary for adequate representation may request them in an ex parte application. Upon finding, after appropriate inquiry in an ex parte proceeding, that the services are necessary and that the person is financially unable to obtain them, the court . . . shall authorize counsel to obtain the services.

18 U.S.C. § 3006A(e)(1). The defendant bears the burden of persuasion. See United States v. Greschner, 802 F.2d 373, 376 (10th Cir. 1986). The necessity of services must be established with specificity. In the present context, "[g]eneral allegations supporting a request for court appointment of a psychiatric expert, without substantive supporting facts, and undeveloped assertions that psychiatric assistance would be beneficial to the defendant will not suffice to require the appointment of a psychiatrist to aid in the preparation of a criminal defense." Liles v. Saffle, 945 F.2d 333, 336 (10th Cir. 1991). We review the denial of a CJA funding request for an abuse of discretion. See United States v. Solon, 596 F.3d 1206, 1210 (10th. Cir. 2010).

         On appeal Defendant argues that psychiatric testimony could have supported his defense that he was merely trying to catch sexual ...

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