                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 11-1630
                                    ____________

                          UNITED STATES OF AMERICA

                                           v.

                                HAROLD MARTINEZ,
                                   a/k/a JAROL

                                   Harold Martinez,
                                       Appellant
                                    ____________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                             (D.C. No. 2-09-cr-00669-003)
                      District Judge: Honorable Juan R. Sánchez
                                     ____________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  January 23, 2012

        Before: FISHER, GREENAWAY, JR. and ALDISERT, Circuit Judges.

                               (Filed: February 7, 2012)
                                    ____________

                              OPINION OF THE COURT
                                   ____________

FISHER, Circuit Judge.

      Harold Martinez (“Martinez”) appeals from the District Court‟s final judgment of

conviction and sentence. For the reasons discussed below, we will affirm.
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                                             I.

       We write principally for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

       From late August 2009 until September 16, 2009, Martinez was a member of a

group that traveled from Bronx, New York, to Philadelphia, Pennsylvania, to rob a “stash

house,” where the group believed drug dealers stored their narcotics and drug proceeds.

Members of the group included co-defendants Roberto Antonio Melendez Placencia

(“Melendez Placencia”), Adalberto Noboa Quezada (“Noboa Quezada”), Junior Gonzalez

Gonzalez (“Gonzalez Gonzalez”), and Manuel Jimenez (“Jimenez”). Martinez, who

drove a Lincoln Town Car for his job as a licensed taxicab driver, served as a driver and

lookout for the group.

       Federal agents first learned of the planned robbery from an informant, Carlos

Jackson Escolastico (“Escolastico”), who was also a member of the group. When the

group congregated at a Philadelphia Taco Bell parking lot on September 16, 2009, federal

authorities arrested all six individuals, including Escolastico and Martinez. Agent Alex

Zuchman (“Agent Zuchman”) of Homeland Security Investigations asked Martinez in

English whether he would consent to the search of the Lincoln Town Car, and a Spanish-

speaking officer translated his request. Agent Zuchman did not tell Martinez he had the

right to refuse consent. Martinez later testified that he consented to the search. Inside the


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trunk of Martinez‟s Lincoln Town Car, federal agents found a bag containing bolt cutters,

black gloves, and two long screwdrivers.

       After the arrest, Martinez was transported to the Federal Detention Center

(“FDC”) in Philadelphia, along with his co-defendants Melendez Placencia, Noboa

Quezada, Gonzalez Gonzalez, and Jimenez. Escolastico, however, was put in a separate

vehicle from the other five men and was not taken to the FDC. At the FDC, Martinez

invoked his right to remain silent. Thereafter, federal agents escorted Martinez and his

four co-defendants in an elevator to another floor within the prison for processing. While

on the elevator, Melendez Placencia said to the group in Spanish, “Look who‟s missing,”

in reference to the absent Escolastico. Martinez responded in Spanish, “Yea, he‟s

probably putting on his uniform already.” The conversation was overheard by a Spanish-

speaking agent.

       In October 2009, approximately one month after the arrests, Martinez asked three

of his co-defendants to sign an affidavit stating that Martinez was “only a cab driver and

had nothing to do with this crime.” Melendez Placencia, Noboa Quezada, and Gonzalez

Gonzalez later testified that they signed the affidavit knowing it was false.

       Martinez was charged with conspiracy to commit Hobbs Act robbery, in violation

of 18 U.S.C. § 1951(a) (Count One); conspiracy to possess with intent to distribute five

kilograms or more of cocaine, in violation of 21 U.S.C. § 846 (Count Two); attempted

Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a) (Count Three); possession of a


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firearm in furtherance of a crime of violence and a drug trafficking crime, in violation of

18 U.S.C. § 924(c) (Count Four); and obstruction of justice, in violation of 18 U.S.C.

§ 1503 (Count Five). Martinez filed a motion to dismiss Count Five or, in the alternative,

sever the trial of Count Five from the other four counts in the indictment. He also filed a

motion to suppress his statement made in the FDC elevator and a motion to suppress the

physical evidence seized from his Lincoln Town Car. The District Court denied all three

motions. Martinez filed a timely appeal of the District Court‟s judgment.

                                             II.

       Under 18 U.S.C. § 3231, the District Court properly exercised jurisdiction. We

have appellate jurisdiction under 28 U.S.C. § 1291.

       The District Court‟s denial of a motion for severance is reviewed for abuse of

discretion. United States v. Hart, 273 F.3d 363, 369 (3d Cir. 2001) (citation omitted).

We review the District Court‟s denial of a motion to suppress for “clear error as to the

underlying factual findings” and exercise “plenary review of [its] application of the law

to those facts.” United States v. Perez, 280 F.3d 318, 336 (3d Cir. 2002) (citation

omitted).

                                            III.

       Martinez first submits that the District Court abused its discretion when denying

his motion to sever the trial of the obstruction of justice charge (Count Five) from that of

the remaining charges in the indictment. A defendant bears a heavy burden in showing


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that a district court abused its discretion in denying a motion for severance. United States

v. Reicherter, 647 F.2d 397, 400 (3d Cir. 1981). In order to succeed on appeal, “the

defendant must pinpoint „clear and substantial prejudice‟ resulting in an unfair trial.”

United States v. McGlory, 968 F.2d 309, 340 (3d Cir. 1992) (citation omitted).

       Martinez asserts that the obstruction of justice charge should have been withheld

from the jury until after it reached a verdict on the remaining counts because the

contemporaneous presentation of evidence relating to the obstruction of justice charge

with evidence pertaining to the other charges prejudiced his trial. We reject his

contention because blanket statements alleging prejudice without evidence of specific

instances of prejudice are insufficient to override the District Court‟s discretion. See

Reicherter, 647 F.2d at 400. Moreover, the District Court instructed the jury to consider

the evidence on each count of the indictment separately, so prejudice cannot be

established “[a]bsent a clear showing that the jury was unable to follow these

instructions.” Id. In addition, we reject Martinez‟s assertion that he was prejudiced by

the obstruction of justice charge itself; the District Court instructed the jury that the

indictment was only a charge and not proof of any fact or allegation. Thus, the District

Court properly denied his motion for severance.

       Martinez next contends that the District Court erred in denying his motion to

suppress the statements he made to his co-defendants in the FDC elevator. The Fifth

Amendment prohibits the government from using incriminating statements made by the


                                               5
defendant unless it employs procedural safeguards effective to secure the privilege

against self-incrimination. Miranda v. Arizona, 384 U.S. 436, 444 (1966). This

protection only applies to statements made when the defendant is both in custody and

subject to interrogation. Id. Interrogation refers to express questioning as well as its

functional equivalent, i.e., “any words or actions on the part of the police . . . that the

police should know are reasonably likely to elicit an incriminating response from the

suspect.” Rhode Island v. Innis, 446 U.S. 291, 301 (1980). If the individual indicates his

wish to remain silent, he is invoking his right to exercise his Fifth Amendment privilege

and the interrogation must cease. Miranda, 384 U.S. at 473-74. But “[a]ny statement

given freely and voluntarily without any compelling influences is . . . admissible in

evidence.” Id. at 478.

       Martinez submits that the federal authorities violated his Fifth Amendment right

by interrogating him in the FDC elevator after he had invoked his right to remain silent.

He asserts that transporting five defendants in the same elevator inside a prison was a

“ploy” amounting to interrogation because the agents should have known that it was

likely the defendants would make incriminating statements to each other. We disagree.

       In Arizona v. Mauro, 481 U.S. 520, 528 (1987), the Supreme Court held that the

police did not interrogate the defendant when the police allowed the defendant to meet

with his wife, and the officer in the same room recorded their conversation. The

defendant was not subject to the functional equivalent of interrogation because there was


                                               6
no evidence that the officer sent the wife in to see her husband for the purpose of eliciting

incriminating statements and there were a number of legitimate reasons, not related to

securing incriminating statements, for having a police officer present. Id. Similarly, in

this case, there is no evidence that the federal agents purposely transported the defendants

together to elicit incriminating statements. Rather, they were transported together

because that was the standard procedure within the FDC, which was a legitimate reason

unrelated to securing incriminating statements. Because Martinez was not subject to

interrogation or its functional equivalent when he made the incriminating statement, the

District Court properly denied his motion to suppress the statement.

       Finally, Martinez argues that the District Court erred in denying his motion to

suppress the physical evidence seized during a search of his vehicle. He submits that his

consent to the search was not voluntary because the police did not inform him of his right

to refuse consent. Because the “District Court‟s determination of voluntariness is a

finding of fact[,] . . . we review for clear error.” United States v. Price, 558 F.3d 270,

278 n.7 (3d Cir. 2009) (citation omitted).

       The Fourth Amendment prohibits unreasonable searches and seizures. Id. at 277

(citing Florida v. Jimeno, 500 U.S. 248, 250 (1991)). However, the “Supreme Court has

long approved consensual searches because it is no doubt reasonable for the police to

conduct a search once they have been permitted to do so.” Id. (internal marks and

citation omitted). To justify a search based on consent, the consent must have been freely


                                              7
and voluntarily given. Id. (citation omitted). Whether an individual voluntarily

consented to a search is determined by examining the totality of the circumstances, which

includes “the age, education, and intelligence of the subject; whether the subject was

advised of his or her constitutional rights; the length of the encounter; the repetition or

duration of the questioning; and the use of physical punishment.” Id. at 278 (citing

Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)).

       The District Court‟s finding of voluntary consent was not clearly erroneous.

Although the police did not inform Martinez of his constitutional right to refuse consent,

the subject‟s “knowledge of a right to refuse is not a prerequisite of a voluntary consent.”

Schneckloth, 412 U.S. at 234. The finding that Martinez‟s consent was voluntary was not

clearly erroneous in light of the police officer‟s brief encounter, calm demeanor, and lack

of repeated questioning, as well as Martinez‟s immediate consent to the search and his

prior experience as a police officer in the Dominican Republic. See Price, 558 F.3d at

279-80 (holding district court‟s finding of voluntary consent not clearly erroneous when

police encounter lacked drawn weapons, threats, or prolonged questioning, and consent

was given without reluctance or hesitation, even though police did not advise defendant

of right to refuse consent).

                                                  IV.

       For the reasons set forth above, we will affirm the judgment of the District Court.




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