United States v. St Martin

*Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
January 7, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
03-10633
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LANA ST. MARTIN,
Defendant-Appellant.
Appeals from the United States District Court
for the Northern District of Texas, Dallas
Nos. 3:02-CR-175 and 3:01-CR-246
Before REAVLEY, DAVIS AND WIENER Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:*
In this direct criminal appeal Lana St. Martin (“St.
Martin”) challenges her conviction and sentence on a number of
grounds. We find no merit to any of St. Martin’s arguments and
AFFIRM.
I.
St. Martin was charged along with Anthony B. Benavides
(“Benavides”) and Elizabeth P. Johnston with conspiring to murder

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2The government submitted the following factual synopsis of
the two charges:
[T]he government will present evidence that
Benavides and St. Martin entered into a conspiracy to
murder John D. Johnston with the objective to
fraudulently obtain the proceeds from his life
2
John D. Johnston for the proceeds of a $500,000 life insurance
policy to which Elizabeth Johnston was the primary beneficiary.
The indictment also charged that, following the murder, Elizabeth
Johnston obtained the proceeds of the policy fraudulently and
transferred $289,000 of the proceeds to St. Martin and Benavides.
On the same day that the original indictment was filed, St.
Martin, Benavides, and Robert Martinez were named in a separate
indictment charging them with securities fraud, wire fraud, and
engaging in monetary transactions involving property derived from
unlawful activity. The indictment charged the defendants with
providing fraudulent information to potential investors to entice
them to invest money in Stadtt Media, L.L.C., in which the three
defendants were officers.
The government moved to consolidate the two indictments for
trial under Federal Rule of Criminal Procedure 13, on grounds
that the counts “could have been joined in a single indictment”
under Rule 8 of the Federal Rules of Criminal Procedure. In the
certificate of conference, the Assistant U.S. Attorney
represented that St. Martin’s counsel had been consulted and did
not oppose consolidation. The government provided the court a
factual basis connecting the two cases.2 The district court

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insurance policy. Following his murder during May
1999, they received approximately $290,000 of the
insurance proceeds which they divided between
themselves. These facts form the gravamen of the
charges in the [murder-for-hire] case. (Continued)
In the [securities-fraud] case, the government
will present evidence that money obtained from the
Johnston insurance policy was immediately used to
establish Stadtt Media and carry on a fraudulent scheme
to [i]nduce individuals to invest money with Benavides
and St. Martin.. It was misrepresented to potential
investors that...Benavides and St. Martin were wealthy
and had obtained the money to sta[r]t Stadt[t] Media by
selling a “dot-com” compa[n]y which they had started
and made suc[c]essful. They also misrepresented their
backgrounds and used the insurance proceeds as “flash
money” to promote their image.
From an evidentiary standpoint, the two
conspirac[ies] are closely connected and overlap. The
proceeds from the murder were used to finance the fraud
conspiracy. Moreover, evidence of their true
background and source of their funds, the murder, will
clearly be admissible in the fraud case to show the
falsity of their representations regarding their prior
success and background.
3On appeal, St. Martin has not challenged the sufficiency of
the evidence to support her conviction nor has she challenged the
government’s summary of the evidence presented in the trial
record. Thus, we will discuss the facts only as needed to
address the issues presented on appeal.
3
agreed to try the cases together.
The matter went to trial before a jury, and St. Martin was
convicted on all counts.3 At sentencing, St. Martin moved for a
downward departure from a mandatory life sentence based on her
serious medical condition. The district judge denied the
downward departure based on his belief that the court did not
have the authority to depart below the statutory minimum sentence

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4Rule 13 of the Federal Rules of Criminal Procedure
provides:
The court may order that separate cases be tried
together as though brought in a single indictment or
information if all offenses and all defendants could
have been joined in a single indictment or information.
5Rule 8 of the Federal Rules of Criminal Procedure provides
in pertinent part:
(a) Joinder of Offenses. The indictment or
information may charge a defendant in separate counts
with 2 or more offenses if the offenses charged...are
of the same or similar character, or are based on the
same act or transaction, or are connected with or
constitute parts of a common scheme or plan.
4
for the offense. The district court sentenced St. Martin to life
imprisonment on the murder-for-hire count and to 120 months
imprisonment for the securities-fraud count, with the sentences
to run concurrently. St. Martin timely filed a notice of appeal,
raising a number of issues which we discuss below.
II.
A. Consolidated Offenses
St. Martin first argues that the district court erred in
consolidating the securities-fraud charge with the murder-for-
hire charge for trial pursuant to Federal Rule of Criminal
Procedure 13.4 She contends both that the two charges cannot be
properly joined under Rule 13 and the substantive rules of
joinder found in Rule 8,5 and, in the alternative, that joining
the offenses improperly prejudiced her case in violation of Rule

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6Rule 14 of the Federal Rules of Criminal Procedure provides
in pertinent part:
(a) Relief. If the joinder of offenses or
defendants in an indictment, an information, or a
consolidation for trial appears to prejudice a
defendant or the government, the court may order
separate trials of counts, sever the defendants’
trials, or provide any other relief that justice
requires.
7See 24 JAMES WM. MOORE, ET AL., MOORE’S FEDERAL PRACTICE §
608.04[2] (3d. ed. 2004) (Any form of joinder not explicitly
permitted by the terms of Rule 8 is “misjoinder.”)
8See 25 JAMES WM. MOORE, ET AL., MOORE’S FEDERAL PRACTICE §
614.02[1] (3d. ed. 2004) (If there is any question about the
propriety of the joinder, the appropriate motion is one based on
misjoinder pursuant to Rule 8.)
9Rule 12(b)(3)(B) of the Federal Rules of Criminal Procedure
provides in pertinent part:
(b) Pretrial Motions.
(3)Motions That Must Be Made Before Trial.
(B) a motion alleging a defect in the
indictment...
5
14.6. She neither opposed the government’s motion to consolidate
the two indictments nor moved before trial to sever the two
indictments.
Any form of joinder not explicitly permitted by the terms of
Rule 8 is referred to as “misjoinder.”7 A defendant objects to
“misjoinder” by filing a Rule 8 objection.8 Because objections
to misjoinder are “objections based on defects in the
indictment,” under Rule 12(b)(3)(B),9 a defendant who fails to
object to “misjoinder” prior to trial waives his objection

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10See United States v. Mann, 161 F.3d 840, 861-862 (5th Cir.
1998); 24 JAMES WM. MOORE, ET AL., MOORE’S FEDERAL PRACTICE §
608.04[2] (3d. ed. 2004) (Objections on the ground of
misjoinder...are based on a “defect in the indictment or
information” within the meaning of Rule 12(b)(3)).
11See 25 JAMES WM. MOORE, ET AL., MOORE’S FEDERAL PRACTICE §
614.02[1](3d. ed. 2004) (A motion for severance under Rule 14
will be considered only if the indictment or information complies
with Rule 8.).
12Federal Rule of Criminal Procedure 12(b)(3)(D) provides in
pertinent part:
(b) Pretrial Motions.
(3) Motions That Must Be Made Before Trial.
(D) a Rule 14 motion to sever charges...
13Federal Rule of Criminal Procedure 12(e) provides in
pertinent part:
(e) Waiver of a Defense, Objection, or
Request. A party waives any Rule 12(b)(3) defense,
objection, or request not raised by the deadline the
court sets under Rule 12(c)...
6
pursuant to Rule 12(e).10
Offenses properly joined under Rule 8 may still be
challenged as “prejudicially joined” by use of a Rule 14 motion
to sever.11 Because the Rule 14 motion is listed as one of the
motions that “must be brought before trial,” it too can be
waived. FED. R. CRIM. P. 12(b)(3)(D)12; FED. R. CRIM. P. 12(e).13
We must first determine the proper standard of review for
St. Martin’s joinder arguments. The government contends that no
review is necessary because St. Martin invited any error that was
committed. The government argues that the “certification of
conference” that accompanied its motion to consolidate the cases
demonstrates that the prosecutor conferred with defense counsel

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14St. Martin did not address the issue of invited error in
her briefs to this court or attempt to explain her attorney’s
suggesting to the court the idea of consolidating the murder-for-
hire and securities fraud charges into a single indictment at the
August 28, 2002, pretrial conference.
15United States v. Baytank, Inc., 934 F.2d 599, 606 (5th Cir.
1991); see also United States v. Solis, 299 F.3d 420, 452 (5th
Cir. 2002)([a] defendant cannot complain on appeal of alleged
errors which he invited or induced...).
16The Certification of Conference provides:
I have spoken to the attorneys of record for
defendant St. Martin and can advise the Court that they
do not oppose the requested transfer and do not oppose
consolidation of these cases. R. 3, 61. (Emphasis
added).
17At the August 28, 2002, pretrial conference, Tom Mills,
attorney for the defendant St. Martin, had the following exchange
7
who had no objection to trying the securities fraud and murder-
for-hire charges together. In addition, the government argues
that, by suggesting at a status conference that the two charges
be joined in one indictment, the defendant caused the two charges
to be tried together.14
Our cases hold that a party may not “invite error and
complain thereof.”15 We therefore must decide whether St. Martin
invited error in this case. The “certification of conference”
attached to the government’s motion to consolidate the charges
does not demonstrate invited error, but rather shows that the
defendant failed to object to the charges being consolidated.16
The same cannot be said for the pretrial conference, however, in
which St. Martin’s attorney affirmatively requested that the two
charges be consolidated.17 Though St. Martin never expressly

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with the trial judge:
Mr. Mills: Would there be any benefit, and is
it even possible, rather than have
two indictments, which is I guess
somewhat more prejudicial against
the defendant than one indictment,
is there any way that the
securities counts could be put into
your superceding indictment?
The Court: So from your perspective you would
rather have the one indictment and
read all the different counts?
Mr. Mills: Yes, I think so...It is a little
bit unusual to have two, especially
when you have a murder case and a
securities fraud case. (R. 6, 6).
8
requested that the two charges be tried together, a joint trial
was the obvious consequence of counsel’s request to have the
charges consolidated. She therefore invited any potential
joinder error in this case.
St. Martin also waived her ability to receive substantive
relief from this court on her joinder arguments. As stated
above, both Rule 8 objections to “misjoinder” and Rule 14 motions
to sever for “prejudicial joinder” come within the scope of Rule
12(b)(3) and 12(e), and therefore must be filed before trial or
are waived. In United States v. Mann, 161 F.3d 840, 862 (5th
Cir. 1998), we held that when a party fails to file either a Rule
8 or Rule 14 objection before trial and fails to provide adequate
justification, “we need not even address the merits of their
argument.”
In this case, St. Martin does not provide any excuse for her
failure to object to the consolidation of the securities fraud

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18The district court also reasoned that it did not want St.
Martin to question Benavides regarding a potential death sentence
because of the possibility that the jury might conclude that,
because St. Martin and Benavides were charged with the same
offense, St. Martin may face the death penalty if convicted. The
court appears to have been concerned that this would adversely
affect the jury’s ability to determine guilt or innocence in St.
Martin’s case. St. Martin argues that these considerations are
insufficient to limit her ability to fully cross-examine an
adverse witness. This argument might have some merit if there
was any evidence that Benavides ever believed he was subject to
the death penalty. As stated above, no evidence supports this
contention and therefore this argument must also fail.
9
and murder-for-hire offenses for trial. She has therefore waived
her objection and can get no relief from this court on this
issue.
B. Limitation on Cross-Examination of Benavides
St. Martin next argues that the district court erred by not
allowing her attorney to inquire on cross-examination into
Benavides’s desire to avoid a death sentence as motivation for
assisting the government and testifying against her. The
district judge set guidelines for cross-examination in an oral
ruling on the first day of trial. R. 8, 106-110.18 During the
hearing, the government argued that because the Attorney General
had never approved the death penalty for Benavides, he never
faced death as a possible punishment. No evidence was presented
at the hearing that Benavides believed that he would face the
death penalty when he entered into plea negotiations and agreed
to help the government. The available evidence is to the
contrary. First, the plea agreement itself provides that

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19See United States v. Alexius, 76 F.3d 642, 644 (5th Cir.
1996).
10
Benavides faced a maximum penalty of life in prison. Second, at
the hearing the district judge agreed with the government that it
was his understanding that the Attorney General never agreed to
allow prosecutors to seek the death penalty in Benavides’s case.
R. 8, 108. St. Martin never produced any evidence challenging
any of these statements.
We review a district court’s limitation on the scope of
cross-examination for abuse of discretion.19 Under Federal Rule
of Evidence 611(a), the district court has the discretion to
limit cross-examination subject to the Sixth Amendment. The
record reveals that, except for prohibiting cross-examination on
Benavides’s desire to avoid the death penalty, counsel was given
broad latitude to cross-examine Benavides, including all of the
possible benefits he received from the plea bargain. Because the
record supports the district court’s conclusion that Benavides
did not believe he faced the death penalty when he made his plea
bargain, the district court did not abuse its discretion in the
limit it placed on Benavides’s cross-examination.
C. Admission of Character Evidence
St. Martin next argues that the district court erred in
admitting extrinsic act character evidence under Federal Rule of

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20Federal Rule of Evidence 404(b) provides in pertinent
part:
(b)Other Crimes, Wrongs, or Acts.-Evidence of
other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action
in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident...
21See United States v. Avants, 367 F.3d 433, 446 (5th Cir.
2004).
22United States v. Beechum, 582 F.2dd 898, 911 (5th Cir.
1978)(en banc).
23Id.
11
Evidence 404(b).20 St. Martin concedes that she lodged no
objection to this evidence, and we are limited to plain error
review.21
We apply a two-pronged test to determine the admissibility
of evidence under Rule 404(b). First, the evidence must be
“relevant to an issue other than the defendant’s character.”22
Second, the evidence must have probative value that is not
substantially outweighed by undue prejudice and must be
“otherwise admissible” under Rule 403.23
1.
St. Martin first challenges the district court’s rulings
allowing several witnesses to testify about the numerous
expensive luxury items she demanded and purchased after the
murder and while Stadtt Media was being financed. She argues
that this evidence improperly conveyed to the jury that she was

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24She specifically challenges virtually all of the testimony
of Gary Stephens, an employee of Stadtt Media, who testified that
St. Martin repeatedly sought to use the funds of Stadtt Media for
personal purchases of automobiles and jewelry. She also
challenges the testimony of Jose Garcia, Benavides’s hired
bodyguard, who testified that he brought her money on several
occasions and that he once took her shopping. St. Martin also
contends that the district court erred in admitting the testimony
of James Wilson, a lawyer hired by Stadtt Media, who testified
that she used investor funds to purchase numerous expensive
personal items.
12
greedy or “money grubbing.”24 Testimony from employees of Stadtt
Media focused on St. Martin’s use of funds from the company’s
swindled investors. She concedes that this testimony was
admissible to show that she was knowingly involved in the
fraudulent securities scheme, but argues it was unduly
prejudicial because it made her seem like a person more likely to
commit murder-for-hire.
St. Martin does not contest the fact that testimony from
Benavides regarding how she used the insurance money from the
murder was relevant to establish that she was a member of the
murder-for-hire conspiracy. Thus, testimony regarding both her
use of the insurance proceeds and testimony regarding her use of
the investor funds are relevant to issues besides her character.
At trial, Benavides testified regarding St. Martin’s desire
to use the murder proceeds to purchase expensive items and her
acquiring many of those items after collecting the insurance
money. So, although the testimony from the Stadtt Media
employees may have added to the jury’s perception of St. Martin

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13
as a greedy person, given the bountiful evidence of her greed
regarding both the murder and the securities fraud, the district
court did not commit error -plain or otherwise- in admitting this
testimony.
2.
St. Martin also asserts that the district court erred in
admitting testimony that, after the murder, she wanted to
purchase a handgun with a sound suppressor and bragged that she
was familiar with how to use a handgun. She contends that this
testimony was unduly prejudicial character evidence seeking to
show she had a propensity to commit murder. We disagree. This
evidence is relevant to something other than her character: the
evidence tended to establish her knowledge of how to operate a
handgun, the same type of weapon used in the murder. Further,
any potential prejudice St. Martin suffered from the admission of
this evidence does not substantially outweigh the high probative
value of evidence showing that she was competent enough with
handguns to use one to shoot John Johnston. Thus, the district
court did not err in admitting this testimony.
3.
St. Martin also argues that the district court improperly
admitted evidence that she was a topless dancer. We agree with
the government that the district court did not err in admitting
this evidence because the defense discussed St. Martin’s working
as a topless dancer in their opening statement as evidence that

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25See United States v. Edwards, 303 F.3d 606, 623 (5th Cir.
2002) (Erroneous admission of testimony does not warrant reversal
because it amounts to harmless error.).
26The manager testified that the handwritten list contained
an itemization of expensive items and their accompanying prices.
For example, the list included $10,000 for surgery and $5,000 for
a shopping spree. The actual list was never put into evidence.
R. 14, 711-712. In his testimony, Benavides also recounted he
and St. Martin’s discussions regarding her intention to use the
insurance money from the murder to purchase several expensive
personal items.
14
she had lived in very difficult circumstances.
D. Bathroom Dash Testimony
St. Martin next argues that the district court abused its
discretion in allowing testimony from a police detective that she
reacted with surprise and dismay and ran into the bathroom at the
sight of a prosecution witness. At trial, St. Martin objected
that the testimony was irrelevant. Her attorney elicited an
admission from the detective on cross-examination that St. Martin
may have run to the bathroom because she was physically ill.
Even if the admission of this evidence was error (which is
doubtful), given the minor nature of this testimony in this
eight-day trial, the admission of this evidence was harmless.25
E. Handwriting Testimony
St. Martin also argues that the district court abused its
discretion in admitting the testimony of a rental car agency
manager that the writing on a notepad found in a car used by St.
Martin and Benavides appeared to have been written by a female.26
St. Martin objected that the testimony was inadmissible lay

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27St. Martin also argues that, although the individual
instances of evidentiary errors might be harmless, in the
aggregate they amount to reversible error. Because St. Martin
has failed to show any substantive individual instances of error,
we also conclude that her evidentiary challenges cannot aggregate
to constitute reversible error.
15
opinion, arguing that the manager needed to be qualified as an
expert to testify about the possible gender source of
handwriting.
The court overruled St. Martin’s objection after being
satisfied that the government had properly laid the foundation
that the manager’s experience with signatures as a part of his
everyday ten-year career in auto rentals made his ability to
discern gender from handwriting proper lay opinion. This
testimony was an unimportant part of this witness’s contribution
to this case. The manager also testified that he rented the car
to St. Martin and Benavides, and that he found both of their
driver’s licenses in the center console when he repossessed the
vehicle. This evidence firmly tied them to the vehicle used in
the murder. We cannot say that the district court abused its
discretion in admitting this evidence. Even if there was error
in admitting this evidence, it was harmless error.27
III.
St. Martin argues finally that the district court erred in
denying her motion for a downward departure on the murder-for-
hire count because the court mistakenly believed that it had no
authority to depart below the minimum sentence of life in prison

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28See United States v. Cothran, 302 F.3d 279, 290-291 (5th
Cir. 2002).
29See United States v. James, 239 F.3d 126-127 (2nd Cir.
2000).
30Id.
16
without a motion from the government. We have jurisdiction to
review a district court’s refusal to depart downward if the
record shows that the district court misunderstood the scope of
its authority to depart from the guidelines.28
18 U.S.C. § 1958(a) provides that if death results from a
murder-for-hire plot, the offender “shall be punished by death or
life imprisonment, or shall be fined not more than $250,000, or
both.” At trial and on appeal, St. Martin argues that this
language allows a judge to impose only a fine for violating §
1958, thereby giving the district court the discretion to depart
downward.
The Second Circuit Court of Appeals has rejected a similar
challenge to identical language contained in 18 U.S.C. §
1959(a)(1), the murder-in-aid-of-racketeering statute.29 The
Second Circuit rejected the argument that Congress intended to
allow a district court to reject either death or life in prison
in favor of a fine alone.30 We find this reasoning compelling,
and reject St. Martin’s argument that the district court
erroneously believed it could not grant a downward departure.
IV.

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17
For the reasons stated above, we AFFIRM St. Martin’s
conviction and sentence.

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