United States v. Dumitru Martin ( 2018 )

FILED
NOT FOR PUBLICATION
OCT 17 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10168
Plaintiff-Appellee, D.C. No. 2:15-cr-00235-TLN-1
v.
MEMORANDUM*
DUMITRU MARTIN,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Judge, Presiding
Argued and Submitted October 10, 2018
San Francisco, California
Before: McKEOWN, W. FLETCHER, and BYBEE, Circuit Judges.
Dumitru Martin was convicted of one count of Bribery of a Public Official,
in violation of 18 U.S.C. § 201, and one count of Conspiracy to Commit an
Offense Against the United States, in violation of 18 U.S.C. § 371. The charges
arose from an undercover operation that began with a tip from a Confidential
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Human Source (“CHS”). In his motion for a new trial, Martin argued that the
prosecution violated its duties under Brady v. Maryland, 373 U.S. 83 (1963), when
it released redacted reports about the CHS’s involvement in the investigation six
days before trial and declined to confirm the CHS’s identity. Martin alleged that
these actions prejudiced his case by hindering his ability to establish an entrapment
defense based on the CHS’s involvement. The district court denied Martin’s
motion for a new trial.
“[S]trictly speaking, there is never a real ‘Brady violation’ unless the
nondisclosure was so serious that there is a reasonable probability that the
suppressed evidence would have produced a different verdict.” Strickler v. Greene,
527 U.S. 263, 281 (1999). It is not reasonably probable that Martin would have
received a different verdict if the prosecution had provided the CHS reports earlier
or in unredacted form or had disclosed the CHS’s identity. The CHS reports do
not contain material favorable to Martin, and Martin has provided no evidence that
confirmation of the CHS’s identity would have advanced his defense. “The mere
suspicion that information will prove helpful is insufficient to require disclosure.”
United States v. Sai Keung Wong, 886 F.2d 252, 256 (9th Cir. 1989). Further,
given the strong evidence of Martin’s guilt, there is no reasonable probability that
the information at issue would have produced a different outcome at trial.
2
At sentencing, the district court imposed a four-level enhancement for
bribery of a public official in a high-level decision-making or sensitive position,
pursuant to USSG § 2C1.1(b)(3). At the time of the bribe, Major O’Neill was the
actual commander of the 60th Contracting Squadron at Travis Air Force Base.
Accordingly, Major O’Neill occupied a “high-level decision-making or sensitive
position” under USSG § 2C1.1(b)(3), and application of the sentencing
enhancement was appropriate.
AFFIRMED
3