11-521-cr
         United States v. Martinez

                                          UNITED STATES COURT OF APPEALS
                                              FOR THE SECOND CIRCUIT

                                                 SUMMARY ORDER
     Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007,
     is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court’s Local Rule 32.1.1. When citing
     a summary order in a document filed with this court, a party must cite either the Federal Appendix or an electronic
     database (with the notation “summary order”). A party citing a summary order must serve a copy of it on any party not
     represented by counsel.

1                 At a stated term of the United States Court of Appeals for the Second Circuit, held at the
2        Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
3        the 5th day of April, two thousand twelve.

 4       Present:
 5                DEBRA ANN LIVINGSTON,
 6                GERARD E. LYNCH,
 7                CHRISTOPHER F. DRONEY,
 8                         Circuit Judges.
 9       _____________________________________________

10       UNITED STATES OF AMERICA,

11                    Appellee,

12                                   v.                                  No. 11-521-cr

13       Marco Antonio Mateo-Mejia, Guario Gonzalez-Guzman,
14       Pedro Rafael Payano, Luis Manuel Minaya-Rodriguez,

15                    Defendants,

16       AGUSTIN TIGELINO MARTINEZ,
17                Defendant-Appellant.
18       _____________________________________________

19       For Appellee:                         Elizabeth S. Riker, Elizabeth A. Horsman, Assistant United
20                                             States Attorneys, for Richard S. Hartunian, United States
21                                             Attorney, Northern District of New York, Syracuse, N.Y.

22       For Defendant-Appellant:              Brian Sheppard, New Hyde Park, N.Y.


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 1           Appeal from judgment of the United States District Court for the Northern District of New

 2   York (McAvoy, J.).

 3           UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, and DECREED

 4   that the judgment of the district court is AFFIRMED.

 5           Defendant-Appellant Agustin Tigelino Martinez (“Martinez”) appeals from a judgment of

 6   the United States District Court for the Northern District of New York (McAvoy, J.), entered

 7   February 8, 2011, convicting him, after trial by jury, of one count of conspiring to bring an alien into

 8   the United States in violation of 8 U.S.C. § 1324(a)(2)(B)(ii) and 18 U.S.C. § 371, and one count

 9   of conspiring to transport an alien in violation of 8 U.S.C. § 1324(a)(1)(A)(ii). On appeal, Martinez

10   argues that his trial counsel rendered constitutionally ineffective assistance and that the district

11   court’s supplemental jury instructions were plainly erroneous. We assume the parties’ familiarity

12   with the underlying facts, procedural history of the case, and issues on appeal.

13           “A defendant claiming ineffective assistance must (1) demonstrate that his counsel’s

14   performance ‘fell below an objective standard of reasonableness’ in light of ‘prevailing professional

15   norms’; and (2) ‘affirmatively prove prejudice’ arising from counsel’s allegedly deficient

16   representation.” United States v. Cohen, 

, 167 (2d Cir. 2005) (quoting Strickland v.

17   Washington, 

, 688, 693 (1984)).

18           Martinez argues first that his trial counsel rendered ineffective assistance by failing to

19   request individual polling of the jury after the foreperson delivered guilty verdicts on both counts.

20   We disagree. Although the record indicates that the jury was unable to agree on a unanimous verdict

21   with respect to one of the counts during the first full day of deliberations, the district court expressly

22   asked after the foreperson delivered the verdicts the following morning whether all of the jurors

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 1   agreed with them; the jury en masse stated their agreement with each count. We must “presume . . .

 2   that the judge or jury acted according to law,” and Martinez has not affirmatively proven “a

 3   reasonable probability that, but for counsel’s [decision not to poll the jurors individually], the result

 4   of the proceeding would have been different.” 

. Nor do we agree with

 5   Martinez that his counsel’s failure to request a jury poll when expressly invited to do so by the

 6   district court is “per se reversible.” Because Martinez has not proven prejudice, we need not and

 7   do not decide whether counsel’s decision not to poll the jurors fell below an objective standard of

 8   reasonableness.

 9           Martinez also claims that his counsel was ineffective for failing to object when the district

10   court twice acknowledged, consistent with a jury note, that the jury had come to a unanimous verdict

11   on Count Two (though it had not reached a verdict on Count One). Martinez contends the court’s

12   observations “effectively charged the jury . . . that the verdict as to that [second] count was official

13   and irrevocable.” Appellant’s Br. at 34. The first instance involved the court’s asking if the jury

14   “want[ed] to go back and work on Count One, now that you’ve decided Count Two,” and occurred

15   shortly after the court received and read a jury note stating that “[w]e have come to a unanimous

16   verdict on Count Two.” In the second of these instances, the district court read the jury note aloud

17   and instructed the jury to “consider the case, deliberate upon it—I should say ‘the count’—and reach

18   a verdict without fear or sympathy.” We need not decide whether prevailing professional norms

19   required counsel to object to these statements because Martinez has not demonstrated a reasonable

20   likelihood that the outcome would have been different had an objection been made, and because

21   failing to so object is not “per se reversible.”




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 1          Finally, Martinez argues that his counsel’s failure to object to the district court’s

 2   supplemental jury instructions rendered his assistance ineffective, and that the instructions

 3   themselves amounted to plain error by the district court. During deliberations, a note from the jury

 4   asked: “To find the defendant guilty on either count, do we have to conclude that he was aware of

 5   a conspiracy’s specific goal to bring an alien into the United States or to transport that alien within

 6   the United States, or is it sufficient to find that the defendant was generally aware that illegal acts

 7   were taking place?” The district court responded, “Merely being aware of illegal acts taking place

 8   does not make one a conspirator. And the answer to the first part of your question, yes, he must

 9   have been aware of the conspiracy’s specific goals, each conspiracy as you know them to be and

10   have stated them in your question.” The jury later asked again, “With regard to this morning’s

11   questions, would you please re-read and probably rephrase your direction?” In response, the district

12   court instructed, “It’s not sufficient to find that a defendant was generally aware that illegal acts

13   were taking place. That’s not sufficient for a conviction. But if the defendant was aware of a

14   conspiracy’s specific goal to bring an alien to the United States or to transport that alien within the

15   United States, that would be a requirement if he joined the conspiracy and if there was a

16   conspiracy.”

17          Martinez argues that these instructions misled the jury because they did not clarify that

18   Martinez also “had to have acted with the intention of furthering [the conspiracy’s] purpose.”

19   Appellant’s Br. at 41. The district court, however, had already clearly instructed the jury that “[o]ne

20   becomes a member of a conspiracy by willfully participating in the unlawful plan with the intent to

21   advance or further some object or purpose of the conspiracy.” The court’s principal instruction also

22   stated that “one who has no knowledge of a conspiracy but happens to act in a way that furthers


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 1   some object or purpose of the conspiracies does not thereby become a conspirator.” Moreover, as

 2   Martinez acknowledges, when the jury later requested that the court “re-read and . . . re-phrase” its

 3   supplemental instruction, the court specifically noted that Martinez had to join the conspiracy, and

 4   not merely be aware of its existence.

 5             In context, then, the jury’s question was directed at how much Martinez was required to have

 6   known about the conspiracy’s illegal object, as distinct from the requirement that he willfully join

 7   in the agreement. See United States v. Santos, 

, 70 (2d Cir. 2008) (holding that a jury

 8   may convict for conspiracy only if it finds “(1) the existence of the conspiracy charged; (2) that the

 9   defendant had knowledge of the conspiracy; and (3) that the defendant intentionally joined the

10   conspiracy”) (emphases added and citations omitted). The instruction was thus an appropriate

11   response to the question the jurors had posed, and was not misleading. Because the instructions,

12   “viewed in context, not only with respect to the overall charge, but also with respect to the entire

13   trial record,” were not “reasonabl[y] likel[y]” to have led the jury to believe it could convict based

14   only on knowledge, Brown v. Greene, 

, 111 (2d Cir. 2009), the district court did not

15   plainly err in instructing the jury and counsel did not render ineffective assistance in failing to

16   object.

17             We have reviewed Martinez’s remaining arguments and find them to be without merit. For

18   the foregoing reasons, the judgment of the district court is AFFIRMED.

19                                                           FOR THE COURT:
20                                                           Catherine O’Hagan Wolfe, Clerk
21




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