     Case: 10-50381 Document: 00511408322 Page: 1 Date Filed: 03/11/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           March 11, 2011
                                     No. 10-50381
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

BERTHA MARTINEZ-RUIZ,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                             USDC No. 3:09-CR-2689-1


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
       Bertha Martinez-Ruiz (Martinez) was convicted by a jury of importing
cocaine, and she was sentenced to 60 months of imprisonment and four years of
supervised release.
       Martinez argues that the district court abused its discretion in denying her
motion for a mistrial based on manifest necessity when the jury, after several
hours of deliberation, questioned the court concerning the duress defense and
the effect on the verdict if they were unable to agree concerning duress.

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                   No. 10-50381

      In evaluating whether a mistrial was appropriate, “the reviewing court
should consider the length of the trial, the complexity of the issues involved and
the length of deliberations.” United States v. Gordy, 526 F.2d 631, 635-36 (5th
Cir. 1976). No one factor is necessarily controlling. Id. at 635. This court
reviews a district court’s denial of a motion for mistrial for abuse of discretion.
United States v. Mitchell, 166 F.3d 748, 751 (5th Cir. 1999); see also Arizona v.
Washington, 434 U.S. 497, 509-10 (1978) (according trial court’s mistrial decision
“great deference”). It is not clear from the record or the jury’s notes that the
reason for the jury’s continued deliberation was its inability to agree as to
Martinez’s duress defense, rather than its effort to understand the nuances of
the application of the duress defense. Accordingly, giving “great deference” to
the district court, Martinez has not shown that the district court abused its
discretion in denying her motion for a mistrial. See Washington, 434 U.S. at
509-10; Mitchell, 166 F.3d at 751.
      Martinez also argues that the district court erred in not giving her a safety
valve adjustment because it failed to make an independent determination
concerning the issue and instead relied solely on the jury’s verdict of guilty as to
one of the charged offenses.
      Consistent with U.S.S.G. § 5C1.2’s directive that the safety valve is
applicable if “the court finds that the defendant meets the criteria,” a district
court is required to make an independent determination whether the criteria
have been met. See United States v. McCrimmon, 443 F.3d 454, 457-58 (5th Cir.
2006). However, the record indicates that the court did not solely base its
decision on the jury’s verdict and that it instead reached an independent
determination. Additionally, in light of conflicting evidence at trial concerning
Martinez’s truthfulness and the jury’s verdict of guilt as to one of the charged
offenses, a determination that Martinez did not meet her burden of showing that
she had been truthful and thus entitled to safety valve relief was plausible in
light of the record as a whole.      See U.S.S.G. § 5C1.2; 18 U.S.C. § 3553(f);

                                         2
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                                 No. 10-50381

McCrimmon, 443 F.3d at 457; United States v. Powers, 168 F.3d 741, 753 (5th
Cir. 1999). Accordingly, the district court did not commit clear error in denying
Martinez safety valve relief. See McCrimmon, 443 F.3d at 457.
      AFFIRMED.




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