Mistrial Motion Properly Denied as Untimely; Slightly Below GL Sentence OK

U.S. v. Martinez, --- F.3d ----, 2006 WL 2065066 (10th Cir. July 26, 2006)

10th implicitly accepts that government may have violated Rule 16 discovery in failing to disclose D’s statement to agent #1 (as #1 testified at trial) after arrest, and accepts that report of agent#2 present at the interview did not satisfy obligation. However, trial court did not err in denying mistrial motion as untimely when D failed to object at government’s opening or at the testimony of agent #1, but only moving for a mistrial at the end of the government’s case. Mistrial is a drastic remedy, and the court has other less drastic options to cure a violation of Rule 16 which it should resort to first, but these options were foreclosed by D’s late motion.

Slightly below guidelines sentence imposed pre-Booker but in anticipation of Booker, as both a guidelines sentence but as an alternative advisory sentence as well, reasonable. Although court did not cite all the 3553(a) factors, record shows it entertained all the sentencing arguments.