Professional Documents
Culture Documents
No. 07-4804
Appeal from the United States District Court for the District of
South Carolina, at Aiken.
Margaret B Seymour, District Judge.
(1:06-cr-00123-MBS)
Submitted:
May 7, 2009
Decided:
July 7, 2009
PER CURIAM:
Martin Salazar appeals his conviction following a jury
trial
of
two
counts
of
making
false
statements
or
while
Department
working
as
an
engineer
at
the
of
Energys
his
conviction
court
erred
under
by
Count
Two;
admitting
the
and
(5)
testimony
whether
of
the
lay
A notice
later
of
the
remaining
motion
effective
entry
or
without
of
the
the
order
judgment
amendment
of
to
denying
the
conviction,
appeal
from
last
such
and
is
an
order
a motion for a new trial under Rule 33, but if based on newly
discovered evidence, only if the motion is made no later than 10
days after the entry of the judgment.
The district court entered judgment against Salazar on
August 7, 2007, and he filed his notice of appeal on August 17,
2007,
thereby
perfecting
timely
appeal
of
the
judgment.
Salazar did not file his motion for a new trial until September
10, 2007, more than ten days after the entry of the judgment.
Because the motion for a new trial was not filed within ten days
after the judgment was entered, Salazars notice of appeal was
4
motion for a new trial on April 7, 2008, and Salazar did not
file an amended notice of appeal regarding that order.
Salazar
did not indicate his intent to appeal the denial of his motion
for a new trial until he filed his appellate brief in this Court
on June 5, 2008.
Salazar
has
failed
appeal
jurisdictional;
to
timely
appeal
in
periods
rather,
file
in
they
criminal
are
cases
are
claim-processing
not
rules
205, 208-13 (2007); United States v. Frias, 521 F.3d 229, 233
(2d Cir. 2008); United States v. Mitchell, 518 F.3d 740, 744
(10th Cir. 2008).
imposed
by
enforced
Rule
by
government.
th[e]
are
not
court
jurisdictional,
when
properly
they
invoked
must
by
be
the
briefs
has
not
addressing
filed
the
motion
timeliness
to
dismiss
issue.
the
appeal
The
as
Accordingly,
because
Salazars
failure
to
comply
with
Rule
4(b)
does
not
for
new
trial,
and
because
the
Government
does
not
P.
33(a).
district
court
should
Fed. R.
exercise
its
States
v.
Perry,
335
F.3d
316,
320
(4th
Cir.
2003)
(quoting United States v. Wilson, 118 F.3d 228, 237 (4th Cir.
1997)).
abuse of discretion.
(4th Cir. 1995).
discovered
evidence
diligence;
evidence,
is
newly
(3)
the
defendant
discovered;
evidence
must
(2)
is
show
the
not
that:
(1)
the
defendant
used
due
merely
cumulative
or
United
Unless the
motion
for
new
trial
as
to
Count
Two
is
based upon his sisters affidavit that she was present at his
birth in Nogales, Arizona.
that Salazar was not diligent in seeking such evidence from his
family members during the year after he was indicted and before
his
trial
discretion
began.
in
Furthermore,
finding
that
the
the
court
did
new
evidence
not
was
abuse
its
unlikely
to
that
Salazar
was
born
in
Mexico,
including:
(1)
an
by
an
employee
of
the
Augusta
National
Golf
Course,
favoring
to
Salazars
demonstrate
conviction
that
he
on
acted
Count
with
Two
due
and
diligence
his
in
for
early
retirement
based
upon
the
January
30,
testimony
at
trial.
The
district
court
found
that
the
was
establish
an
merely
impeaching
affirmative
defense
and
was
of
Furthermore, the
not
sufficient
entrapment
by
to
estoppel
discrepancies
between
Salazars
8
reported
dates
of
birth.
district
courts
denial
of
motion
for
an
Cir.
1995).
district
court
did
not
abuse
its
defendant
challenges
the
sufficiency
of
the
States
v.
Stewart,
256
F.3d
231,
249
(4th
Cir.
2001).
could
accept
as
adequate
and
sufficient
to
support
States
v.
Burgos,
(citations omitted).
94
F.3d
849,
862
(4th
Cir.
1996)
jurys
substantial evidence.
verdict
on
Count
Two
was
supported
by
The
evidence
that
Salazars
statement
on
the
Salazar
challenged
the
reliability
of
the
the
the
testimony
evidence
of
in
the
the
Governments
light
most
witnesses,
favorable
to
and
the
We
(1) there was error; (2) the error was plain; and (3) the
the
fairness,
judicial proceedings."
integrity
or
public
reputation
of
omitted).
A district courts decision to admit evidence is given
broad deference and will be overruled only under extraordinary
circumstances
that
constitute
plain
abuse
of
discretion.
United States v. Love, 134 F.3d 595, 603 (4th Cir. 1998).
In
light
most
favorable
to
its
proponent,
maximizing
its
United
States v. Simpson, 910 F.2d 154, 157 (4th Cir. 1990) (quoting
Mullen v. Princess Anne Volunteer Fire Co., 853 F.2d 1130, 1135
(4th Cir. 1988)).
Ruple testified that he worked at the Augusta National
during the 2004 and 2005 seasons, and put together a written
11
spotlight
National
about
as
Salazar,
caddy
who
during
was
that
working
time.
at
Ruple
the
Augusta
prepared
Salazar
spotlight
Salazar
was
conducted
based
by
upon
Ruple.
a
The
fifteen-minute
spotlight
was
interview
posted
on
of
a
bulletin board where Salazar could see it, and Salazar did not
complain
that
information.
the
spotlight
contained
any
inaccurate
examination,
Ruple
testified
that
the
Upon
factual
Ruple
acknowledged
that
the
spotlight
was
the
facts
contained
in
it.
Ruples
testimony
was
value
outweighed
any
prejudicial
effect
upon
the
We
judgment
trial.
legal
conclusions
and
are
its
denial
adequately
13
of
Salazars
presented
in
motion
the
for
new
materials
before
the
court
and
argument
would
not
aid
the
decisional
process.
AFFIRMED
14