United States of America v. Martin Garcia

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
** The Honorable Sharon L. Gleason, United States District Judge for the
District of Alaska, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARTIN GARCIA,
Defendant - Appellant.
No. 11-35820
D.C. Nos. 1:09-cv-00103-RFC
1:04-cr-00087-RFC-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, District Judge, Presiding
Argued and Submitted December 6, 2012
Seattle, Washington
Before: TALLMAN and WATFORD, Circuit Judges, and GLEASON, District
Judge.**
Federal prisoner Martin Garcia appeals the district court’s denial of his 28
U.S.C. § 2255 motion challenging his jury conviction and 720-month sentence for
FILED
DEC 19 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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multiple counts including conspiracy to possess with intent to distribute
methamphetamine; possession with intent to distribute methamphetamine;
possession of methamphetamine, using or carrying a firearm in furtherance of a
drug trafficking crime; and money laundering.
Garcia claims that under Napue v. Illinois, 360 U.S. 264 (1959), his due
process rights were violated at his trial in two respects. First, the Government’s
main witness, Gwynne Black, had received use immunity but testified at trial that
she could not recall receiving any promises from the Government in exchange for
her testimony. The prosecutor failed to correct this falsehood. Garcia also claims
the Government violated his due process rights by failing to expose inconsistencies
between prior statements given and trial testimony provided by both Black and her
mother, Patricia Prem.
Garcia also alleges that his trial counsel rendered ineffective assistance
because he failed to impeach Black with the immunity letters and failed to expose
inconsistencies in the grand jury testimony, F.B.I. form 302 statements, and trial
testimony of both Black and Prem.
We have jurisdiction under 28 U.S.C. § 2255, and we affirm.
With respect to the first alleged Napue violation, Garcia established and the
Government concedes that a due process violation occurred when the prosecutor

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failed to correct Black’s testimony regarding the use immunity she had received.
But to obtain relief on this basis, Garcia must also show that the violation was
“material,” that is, he must show a “reasonable likelihood that the false testimony
could have affected the judgment of the jury.” Hayes v. Brown, 399 F.3d 972, 985
(9th Cir. 2005)(en banc). Here, Black’s false testimony was substantially corrected
during her cross examination, when she confirmed that she had not been charged
federally with offenses that could have carried a sentence of 25 years or more in
prison, and acknowledged that instead she had been permitted to plead guilty to
offenses in state court for which she served only one month in jail. Black agreed
with defense counsel that she was receiving a “rather large benefit” for testifying
against Garcia. Because the jury heard these additional facts on cross-examination,
there is no reasonable likelihood that Black’s false testimony on direct affected the
jury’s verdict.
As to the second alleged Napue violation, Garcia has not shown that the
Government’s alleged failure at trial to reveal inconsistencies between the prior
statements and trial testimony of two Government witnesses violated Garcia’s right
to due process. Rather, this Court agrees with the district court’s finding that the
discrepancies in their testimony “are easily understood as unremarkable tricks of
memory, not outright lies,” and that “Black’s testimony was corroborated in key

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respects establishing Garcia’s guilt beyond a reasonable doubt on the counts of
conviction.”
With respect to Garcia’s ineffective assistance claim under Strickland v.
Washington, 466 U.S. 668 (1984), the district court determined after an evidentiary
hearing that Garcia had failed to demonstrate that his Sixth Amendment right to
counsel was violated. We agree. Garcia has not shown that trial counsel was
deficient for failing to impeach Black with the immunity letters, or in failing to
point out various inconsistencies in Black’s and Prem’s testimony on cross-
examination. Rather, Garcia’s attorney made a sound strategic decision that
greater harm could have been done by such cross examination, as it would have
allowed those two witnesses to restate or emphasize the testimony initially elicited
in direct examination that supported the Government’s theory that Garcia was the
true source of the methamphetamine, and not “Alex.” Garcia has also failed to
show that he suffered prejudice as a result of any of these alleged deficiencies.
AFFIRMED.

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