                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             MAY 01 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 16-10511

              Plaintiff-Appellee,                D.C. No. 4:14-cr-00093-JSW-5

 v.
                                                 MEMORANDUM*
MICHAEL MARTIN, AKA Diesel,
AKA Freddy,

              Defendant-Appellant.


                    Appeal from the United States District Court
                       for the Northern District of California
                     Jeffrey S. White, District Judge, Presiding

                        Argued and Submitted April 9, 2018
                            San Francisco, California

Before: WARDLAW and CLIFTON, Circuit Judges, and KATZMANN,** Judge.

      Michael Martin appeals his jury conviction and sentence for four counts of

robbery and one count of conspiracy to commit robbery affecting interstate

commerce in violation of the Hobbs Act, 18 U.S.C. § 1951. We affirm.

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Gary S. Katzmann, Judge for the United States Court
of International Trade, sitting by designation.
      1.     The district court did not commit plain error by admitting the plea

agreements of two cooperating witnesses. Martin’s counsel repeatedly attacked

both witnesses’ credibility during opening statements and cross examination. The

plea agreements were therefore admissible to rebut those attacks. See United

States v. Kats, 871 F.2d 105, 107 (9th Cir. 1989) (holding that the district court did

not abuse its discretion by admitting a plea agreement after defense counsel

attacked the witness’ credibility and questioned the witness about the agreement’s

terms).

      The prosecution was not obligated to redact the agreements. The agreements

did not contain any information about Martin or relevant evidence that was not

presented at trial. Furthermore, the district court properly instructed the jury to

consider the plea agreements only to help determine the witnesses’ believability

and instructed the jury to examine their testimony with greater caution. See United

States v. Shaw, 829 F.2d 714, 717-18 (9th Cir. 1987) (holding that any

prosecutorial vouching for a cooperating witness was not a basis for reversal

because the trial court instructed the jury to consider the witness’ testimony with

caution). In addition, the government’s questions about why one cooperating

witness ultimately decided to tell the government the truth did not constitute

improper vouching because the questions “did not refer to extra-record facts” or


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indicate that the government “could verify that [the witness] was telling the truth.”

United States v. Dorsey, 677 F.3d 944, 954 (9th Cir. 2012).

      2.     The government did not commit prosecutorial misconduct by asking

Martin whether he “agreed with” various pieces of information that were not in

dispute at trial. The questions, which did not concern Martin’s role in any of the

robberies, were not comparable to asking Martin whether another witness was

“inventing stories” or lying in his testimony. United States v. Alcantara-Castillo,

788 F.3d 1186, 1193 (9th Cir. 2015); United States v. Greer, 640 F.3d 1011, 1023

(9th Cir. 2011).

      3.     Moreover, any error in admitting the plea agreements or allowing this

line of questioning or alleged prosecutorial misconduct did not effect Martin’s

substantial rights. The government produced significant evidence against Martin at

trial. In addition to the testimony of the cooperating witnesses describing Martin’s

involvement in the conspiracy, the government produced evidence that Martin

rented the cars used in the robberies, his cell phone records showed that he was in

the vicinity of the robberies, his fingerprints were on the license plate covers on the

rental cars, and he discussed his involvement in the conspiracy with other

coconspirators. Admission of the plea agreements and the questioning of Martin

and the cooperating witness did not, therefore, affect the outcome of the trial.


                                           3
      4.     The district court did not commit plain error by admitting a list of

robberies prepared by a cooperating witness. Although the prosecution did not

establish an adequate foundation for admission of the list under Fed. R. Evid.

803(5), the record reflects that the list met the requirements of a past recollection

recorded. Furthermore, any error in admitting the list did not affect the outcome of

the trial. The cooperating witness testified extensively about the robberies listed,

and would have done so even without admission of the list as an exhibit.

      5.     The three recorded calls between a cooperating witness and other

members of the conspiracy were properly admitted as coconspirator statements

under Fed. R. Evid. 801(2)(E). The district court did not err in concluding that

these calls included statements made during and in furtherance of the conspiracy.

A conspiracy does not necessarily come to an end simply because two of its

participants have been arrested. See United States v. Mason, 658 F.2d 1263, 1269

(9th Cir. 1981) (“Conspiracies do not necessarily end when all but one of the co-

conspirators are arrested.”); see also United States v. Gordon, 844 F.2d 1397, 1402

(9th Cir. 1988) (holding that recorded statements between one member of a

conspiracy and a government cooperator were admissible against another member

of the conspiracy once the conspiracy had been established). The conversations at

issue plainly “further[ed] the common objectives of the conspiracy,” United States


                                           4
v. Yarbrough, 852 F.2d 1522, 1535 (9th Cir. 1988), as the participants discussed

strategies for future robberies and further development of the criminal group on

each of the calls.

      Nor did the district court err in denying Martin’s Fed. R. Evid. 402 and 403

objections. The calls were probative of Martin’s knowledge and intent, and did not

contain material that would “lure the factfinder into declaring guilt on a ground

different from proof specific to the offense charged.” Old Chief v. United States,

519 U.S. 172, 180 (1997). In any event, any error in admitting the calls was

harmless, as Martin does not challenge the admission of other significantly more

incriminating phone calls in which he contacted a potential robbery victim.

      6.     We do not generally review ineffective assistance claims on direct

appeal. See United States v. Cochrane, 985 F.2d 1027, 1029 (9th Cir. 1993). We

consider Martin’s claim in this case, however, because the record is sufficiently

complete. Martin has not shown that his counsel was deficient or that he was

prejudiced by any alleged deficiencies. Strickland v. Washington, 466 U.S. 668,

687, 694 (1984). Martin’s counsel’s failure to object to the admission of the plea

agreements and lines of questioning was not deficient, as “[c]ounsel’s failure to

make a futile motion does not constitute ineffective assistance of counsel.” James

v. Borg, 24 F.3d 20, 27 (9th Cir. 1994). In addition, his counsel referred to the


                                          5
cooperating witness’ robbery list in order to impeach the witness’ credibility. His

failure to object to the admission of this list is thus best construed as a “tactical

decision[]” for which counsel has “wide latitude.” Strickland, 466 U.S. at 689. In

light of the overwhelming evidence presented against Martin, Martin was not

prejudiced by any deficiencies on these grounds. Martin has not, therefore,

established that he received ineffective assistance of counsel.

      7.     The district court did not err in applying an adjustment for obstruction

of justice under U.S.S.G. § 3C1.1. The district court expressly found on the record

that Martin gave false testimony on material matters with willful intent. See

United States v. Johnson, 812 F.3d 757, 761 (9th Cir. 2016). Martin’s testimony at

trial was plainly contradicted by the testimony of the cooperating witnesses and

independent evidence. See United States v. Harrison, 585 F.3d 1155, 1161 (9th

Cir. 2009) (holding that the district court did not err in applying an obstruction

enhancement “[i]n light of the patent discrepancy between [the defendant’s]

testimony, the physical evidence and the testimony of every other witness”); see

also United States v. Dunnigan, 507 U.S. 87, 96 (1993) (“[A] defendant’s right to

testify does not include a right to commit perjury.”). We therefore affirm the

district court’s imposition of the sentencing enhancement for obstruction.




                                            6
      8.     The district court did not err by adding grouping points for two

uncharged robberies under U.S.S.G. §§ 3D1.1 and 3D1.4. The jury verdict did not

specify which offenses were the objects of the conspiracy. Therefore, the district

court correctly added grouping points for the offenses of which it would have

convicted Martin were it sitting as the trier of fact. See U.S.S.G. § 1B1.2 App.N.4

(noting that U.S.S.G. § 1B1.2(d) “should only be applied with respect to an object

offense alleged in the conspiracy count if the court, were it sitting as a trier of fact,

would convict the defendant of conspiring to commit that object offense”). Both

cooperating witnesses testified about Martin’s role in the uncharged robberies.

Therefore, the district court did not err in adding grouping points for the two

robberies.

      AFFIRMED.




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