                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                                     PUBLISH
                                                                       July 26, 2006
                   UNITED STATES CO URT O F APPEALS                Elisabeth A. Shumaker
                                                                       Clerk of Court
                                 TENTH CIRCUIT



 U N ITED STA TES O F A M ER ICA,

              Plaintiff-Appellee,
       v.                                               No. 04-4179
 JORGE M ARTINEZ, a/k/a A NTONIO
 ZA M O RA-PER EZ, a/k/a JO RGE
 M ARTINEZ-CERV ANTES,

              Defendant-Appellant.



         A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
                      FOR T HE DISTRICT OF UTAH
                       (D .C . NO. 04-CR-34-02-PGC)


G. Fred M etos, Attorney at Law, Salt Lake City, Utah, for D efendant-Appellant.

W ayne T. Dance, Assistant United States Attorney (Paul M . W arner, United
States Attorney, with him on the brief), Salt Lake City, Utah, for Plaintiff-
Appellee.


Before H E N RY, HA RTZ, and TYM KOVICH, Circuit Judges.


T YM K O VIC H, Circuit Judge.


      Jorge M artinez appeals his conviction and sentence for possessing

methamphetamine w ith the intent to distribute. M artinez claims the district court
should have granted a mistrial based on the government’s failure to disclose the

substance of M artinez’s pretrial statements to a government agent. He also

claims the district court improperly sentenced him under the Federal Sentencing

Guidelines. W e conclude that the district court did not err in denying the request

for a mistrial and that M artinez’s sentence was reasonable under 18 U.S.C.

§ 3553(a).

      W e therefore AFFIRM .

                                  I. Background

      Utah Highway Patrol officers arrested Alejandro Cervantes and Jorge

M artinez in Juab County, Utah, after discovering three pounds of

methamphetamine in the spare tire of their car. W ith Cervantes driving, the pair

claimed they were on a road trip from Phoenix, Arizona, to Ogden, Utah.

      Following their arrest, Cervantes and M artinez were interviewed by DEA

Agent Jeffrey Clark and Agent Craig Hicken of the Utah Department of Public

Safety. Cervantes, interviewed first, told the agents the car was his but that he

did not know drugs were in the spare tire until they had been stopped near

Flagstaff, Arizona. At that time M artinez warned him to drive more carefully

because there were drugs in the car. Cervantes further stated that the drugs were

to be delivered to a person known as “El Grande” in Ogden, Utah.

      The agents then interviewed M artinez. He reversed the finger-pointing,

stating that (1) Cervantes owned the drugs and (2) Cervantes informed him of the

                                         -2-
drugs in the car only after they had been stopped for a traffic violation in

Flagstaff.

         Cervantes was then interview ed again. W hen told of the seriousness of his

case, Cervantes begged the officers to bring M artinez into the room to give them

El Grande’s phone number. The officers brought M artinez back, and Cervantes

continued to beg him to give the agents El Grande’s number. Prompted by

Cervantes’ pleading, M artinez wrote down a number, which later proved to be

false.

         After the interview s, Agent Hicken prepared a report of what had been said

during them. M artinez received this report before trial, pursuant to Federal Rule

of Criminal Procedure 16(a)(1)(A ). Agent Clark did not prepare a separate report.

         At trial, the government discussed these interviews in several contexts.

First, during his opening statement, the prosecutor told the jury they would hear

that M artinez “admitted that he had known El Grande and had contacts w ith him

in the past in a similar type of situation.” Vol. IV, Pg. 32–33. Second, the

government called the interviewing agents as witnesses. Agent Clark took the

stand and testified that M artinez admitted several incriminating points: (1) the

drugs belonged to M artinez, (2) he had previously transported drugs for El

Grande, (3) he described El Grande’s physical appearance, and (4) he detailed the

procedure for delivering the drugs to U tah. On cross examination, Agent Clark

admitted that none of this information was contained in Agent Hicken’s report.

                                           -3-
M artinez, however, lodged no objection to Agent Clark’s testimony on the basis

of surprise or nondisclosure under Rule 16.

      Agent Hicken testified after Agent Clark. None of A gent Hicken’s

testimony is in dispute, and M artinez did not cross-examine Agent Hicken about

the information revealed in Agent Clark’s testimony.

      Follow ing Agent Hicken’s testimony, the prosecution rested. The defense

also rested without calling any witnesses but immediately moved for a mistrial

based on the testimony of Agent Clark, arguing it showed the government had

failed to disclose the substance of M artinez’s admissions to Agent Clark during

discovery, as required by Rule 16(a)(1)(A). The court denied the motion, ruling

that the substance of the testimony had been provided by Agent Hicken’s report,

which summarized his and Agent Clark’s interviews with M artinez and Cervantes

at the jail. The court further held that a mistrial was inappropriate because

M artinez could have objected as early as the opening statement but chose not to.

The jury returned a guilty verdict.

      By the time of sentencing, the Supreme Court had issued its landmark

ruling in Blakely v. Washington, 542 U.S. 296 (2004), which cast doubt on the

constitutionality of the federal sentencing scheme under the Sixth Amendment. A

decision was pending in United States v. Booker, 543 U.S. 220 (2005), in which

the Supreme Court would ultimately apply Blakely to hold that mandatory

application of the United States Sentencing Guidelines also violated the Sixth

                                         -4-
Amendment. Presciently, the district court concluded the G uidelines were

inconsistent with Blakely and that it was not bound by them in sentencing

M artinez. Accordingly, it imposed a discretionary sentence of 210 months. It

also imposed an identical alternative sentence that would take effect in the event

the court was required to follow the G uidelines.

                                     II. Analysis

      M artinez raises two issues for us to consider. First he claims the district

court should have granted his motion for a mistrial because the government’s

report did not contain all the statements he made in the interview. Second, he

claims the district court improperly failed to consider the factors set forth in 18

U.S.C. § 3553(a) when imposing sentence. We reject both claims.

      A. Rule 16 M istrial M otion

      M artinez argues that the use of his admissions at trial violated Rule 16 and

that the only adequate remedy was a mistrial. “W e review a district court’s

refusal to grant a mistrial for abuse of discretion,” which means w e will reverse

only if the decision “was based on a clearly erroneous finding of fact or an

erroneous conclusion of law or manifests a clear error of judgment.” United

States v. Stiger, 413 F.3d 1185, 1194 (10th Cir. 2005). “In determining whether

to grant a mistrial, a district judge must first determine whether an error has

occurred and, if so, whether that error impaired the ‘defendant’s right to a fair and

impartial trial.’” Id. Here, we find no abuse of discretion.

                                         -5-
         Rule 16(a)(1)(A) requires the government to “disclose to the defendant the

substance of any relevant oral statement made by the defendant . . . in response to

interrogation by a person the defendant knew was a government agent if the

government intends to use the statement at trial.” 1 This rule “is designed to

provide the defendant with sufficient information to make an informed decision

about a plea, to allow the court to rule on admissibility motions before trial, to

minimize prejudicial surprise at trial, and to generally increase the efficiency of

litigation.” United States v. Hernandez-M uniz, 170 F.3d 1007, 1010 (10th Cir.

1999).

         Should the government fail to comply with this rule, Rule 16(d)(2) provides

a number of options for the court: “(A) order that party to permit the discovery or

inspection; specify its time, place, and manner; and prescribe other just terms and

conditions; (B) grant a continuance; (C) prohibit that party from introducing the

undisclosed evidence; or (D) enter any other order that is just under the

circumstances.” Depending on the circumstances, even a mistrial could be

appropriate under Rule 16(d)(2)(D). See, e.g., United States v. Crouthers, 669

F.2d 635, 641 (10th Cir. 1982) (suggesting that defendant could have moved for a

mistrial).




         1
        Rule 16(a)(1)(A ), by its terms, applies only where the defendant requests
disclosure. Here, however, the government was proceeding under an open file
policy and acknowledges the rule applied in this case.

                                          -6-
      W e have identified several considerations a district court should make in

determining which sanction is appropriate for failure to comply with Rule 16: (1)

the reasons the government delayed producing the requested materials, including

whether or not the government acted in bad faith when it failed to comply with

the discovery order; (2) the extent of prejudice to the defendant as a result of the

government’s delay; and (3) the feasibility of curing the prejudice with a

continuance. United States v. M uessig, 427 F.3d 856, 864 (10th Cir. 2005) (citing

United States v. Gonzales, 164 F.3d 1285, 1292 (10th Cir. 1999)); United States

v. Wicker, 848 F.2d 1059, 1061 (10th Cir. 1988). Applying these factors, the

district court should impose “the least severe sanction that will accomplish

prompt . . . and full compliance with the court’s discovery orders.” 2 Wicker, 848

F.2d at 1061.

      In arguing for a mistrial under Rule 16, M artinez claimed that Agent

Hicken’s report “was essentially an exculpatory statement” that said nothing

about any dealings with El Grande. He argued that statements about M artinez

working with El Grande were “well beyond what was in the discovery [he] was

      2
        A mistrial is a drastic sanction, and any “motion for a mistrial should be
made promptly.” United States v. Ortiz-Arrigoitia, 996 F.2d 436, 442 (1st Cir.
1993) (citing Saville v. United States, 400 F.2d 397, 400 (1st Cir. 1968)
(concluding that motion for mistrial was untimely where defendant failed to act at
the earliest possible opportunity)). This doctrine is particularly relevant in the
context of a Rule 16 violation, for w hich less severe remedies are preferred. A
defendant should not wait to object until the only meaningful remedy would be a
mistrial. Rather, a defendant should object at the first reasonable opportunity to
allow the court to explore less drastic remedies.

                                          -7-
provided.” In response, the court first concluded that the government had

“substantially complied” with its disclosure obligations by providing the

“substance” of the disclosure prior to trial. Vol. V, Pg. 235. In addition, the

district court found that M artinez knew from the government’s opening statement

the basis of the proposed testimony but failed to timely object:

      [The prosecutor], I remember in his opening argument, laid out all this
      stuff that was coming in. If for some reason you thought that was a
      surprise, we could have discussed it then and so forth. I think
      everybody knows that there were incriminating statem ents that were
      made, so I’m going to deny the motion for a mistrial.

Id.

      W e recognize that disclosure of a defendant’s statements should certainly

be made prior to trial. Rule 16(a)(1)(A) contemplates pretrial disclosure, and

ordinarily the process followed by the government here— production of a written

report— would suffice. Unfortunately, in this appeal we are hampered in our

assessment of whether the disclosure obligation was fully satisfied because

neither party has provided the written report.

      The district court, however, was justified in denying the request for a

mistrial based on Rule 16 because it was not timely. First of all, as early as the

government’s opening statement, M artinez knew the basis of A gent Clark’s

testimony and was on notice that the testimony could broadly include disclosures

that may not have been contained in the report. M artinez had a second

opportunity to object to the testimony when Agent Clark took the stand but again

                                          -8-
lodged no objection. At that time, under Rule 16 and our case law, M artinez

could have allowed the court to cure the nondisclosure, either to strike the

testimony or continue trial based on the violation. Either remedy would have

satisfied Rule 16 and would not have required the drastic remedy of mistrial. See

Wicker, 848 F.2d at 1061 (stating that a court should impose the “least severe

sanction”). Rule 16 and our cases specifically mention continuance or exclusion

of the evidence as preferred remedies. Fed. R. Crim. P. 16(d)(2)(B), (C); United

States v. Ivy, 83 F.3d 1266, 1281 (10th Cir. 1996) (affirming decision to admit

evidence offered in violation of Rule 16 after giving defendant time to review it);

United States v. Wicker, 848 F.2d 1059, 1062 (10th Cir. 1988) (affirming decision

to suppress evidence based on a Rule 16 violation); United States v. Crouthers,

669 F.2d 635, 640–41 (10th Cir. 1982) (affirming decision to suppress evidence

offered in violation of Rule 16 but denying defendant’s motion for mistrial);

United States v. M itchell, 613 F.2d 779, 781 (10th Cir. 1980) (noting that

defendant could have requested a cautionary instruction).

      The other considerations relevant to a Rule 16 violation also suggest such a

drastic remedy was not appropriate in this case. M artinez does not claim the

government acted in bad faith. Nor has he shown any prejudice by the

government’s delay in disclosing the statements; the record reflects that he was

able to cross-examine Agent Clark effectively.




                                         -9-
      At oral argument, M artinez’s counsel suggested that the late revelation of

this evidence undermined the entire theory of his defense and that had he seen the

evidence sooner, he might not have taken the case to trial. W hile it is true Rule

16 was “designed to provide the defendant with sufficient information to make an

informed decision about a plea,” Hernandez-M uniz, 170 F.3d at 1010, any error in

this regard could have been remedied without a mistrial. 3 In light of these

circumstances, we cannot say the district court abused its discretion in declining

to grant a mistrial.

      B. Sentencing

      M artinez also claims the district court erred by issuing a discretionary

sentence that did not specifically consider the factors described in 18 U.S.C.

§ 3553(a). Since United States v. Booker, 543 U.S. 220 (2005), we review

sentences for reasonableness. United States v. Kristl, 437 F.3d 1050, 1055 (10th

Cir. 2006). In Kristl we explained that sentences must be both substantively and

procedurally reasonable. Id. (“[T]he reasonableness standard of review set forth

in Booker necessarily encompasses both the reasonableness of the length of the

sentence, as well as the method by which the sentence was calculated.”).

M artinez raises a procedural challenge, arguing that the court erred by not

addressing each aspect of § 3553(a).

      3
         For example, M artinez could have asked for a short continuance to
evaluate his case in light of the new information. Based on this information, the
district court could have allowed him to change his plea without any penalty.

                                         -10-
      This argument is foreclosed by United States v. Rines, 419 F.3d 1104 (10th

Cir. 2005), in which we concluded the sentencing court does not abuse its

discretion by failing to mention each of the § 3553(a) factors:

      It is true that the district court did not march through § 3553(a)’s
      sentencing factors, but w e have never imposed such a requirem ent. . . .
      It is quite clear that the sentencing court is not required to consider
      individually each factor listed in § 3553(a) before issuing a sentence.
      M oreover, we do not demand that the district court recite any magic
      words to show that it fulfilled its responsibility to be mindful of the
      factors that Congress has instructed it to consider. Here, the district
      court stated that it “look[ed] at the record in its entirety,” and after its
      review it concluded that 70 months was an appropriate sentence. The
      court heard several different arguments regarding the appropriate
      sentencing range and was obviously familiar with the facts of the case.
      W e will not make the useless gesture of remanding for reconsideration
      when Defendant was aw are at sentencing that all relevant factors w ould
      be considered by the district court.

Id. at 1107 (internal citations and quotations omitted).

      Here, the district court sentenced M artinez prior to the Supreme Court’s

ruling in Booker, which made the sentencing guidelines advisory. The court,

however, did not apply the guidelines in a mandatory fashion. Instead,

anticipating the holding in Booker, the district court stated that it was “going to

sentence as an advisory— sentence under the preexisting law. However, in doing

that, I will take a look at the guidelines as instructive on the point.” Vol. VI, Pg.

4 (emphasis added). The court further stated, “I think I should have to make a

determination of the appropriate sentence in looking at everything.” Id. at 6–7.

Based on this review of the case, the court concluded: “[P]roceeding as a



                                          -11-
discretionary matter, the defendant will be sentenced to 210 months, slightly

down from the 235 months under the guidelines. If I w ere under the guidelines, I

would grant [the] motion for a downward departure . . . and sentence him to 210

months under the guidelines, so either way I would reach the same sentence of

210 months.” Id. at 16.

      As in Rines, the district court heard multiple arguments regarding the

appropriate sentencing range and was familiar with all the relevant facts of the

case. Therefore, we conclude the district court did not err when sentencing

M artinez and that his sentence is reasonable under § 3553(a).

                                  III. Conclusion

      Because the district court did not err in denying a mistrial, and because the

district court properly considered the entire record in applying the Guidelines in

an advisory fashion, we AFFIRM .




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