IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-50381

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

BERTHA MARTINEZ-RUIZ,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:09-CR-2689-1

Before KING, BENAVIDES, and ELROD, Circuit Judges.

PER CURIAM:

*

Bertha Martinez-Ruiz (Martinez) was convicted by a jury of importing

cocaine, and she was sentenced to 60 months of imprisonment and four years of

supervised release.

Martinez argues that the district court abused its discretion in denying her

motion for a mistrial based on manifest necessity when the jury, after several

hours of deliberation, questioned the court concerning the duress defense and

the effect on the verdict if they were unable to agree concerning duress.

United States Court of Appeals

Fifth Circuit

F I L E D

March 11, 2011

Lyle W. Cayce

Clerk

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.

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No. 10-50381

In evaluating whether a mistrial was appropriate, “the reviewing court

should consider the length of the trial, the complexity of the issues involved and

the length of deliberations.” United States v. Gordy, 526 F.2d 631, 635-36 (5th

Cir. 1976). No one factor is necessarily controlling. Id. at 635. This court

reviews a district court’s denial of a motion for mistrial for abuse of discretion.

United States v. Mitchell, 166 F.3d 748, 751 (5th Cir. 1999); see also Arizona v.

Washington, 434 U.S. 497, 509-10 (1978) (according trial court’s mistrial decision

“great deference”). It is not clear from the record or the jury’s notes that the

reason for the jury’s continued deliberation was its inability to agree as to

Martinez’s duress defense, rather than its effort to understand the nuances of

the application of the duress defense. Accordingly, giving “great deference” to

the district court, Martinez has not shown that the district court abused its

discretion in denying her motion for a mistrial. See Washington, 434 U.S. at

509-10; Mitchell, 166 F.3d at 751.

Martinez also argues that the district court erred in not giving her a safety

valve adjustment because it failed to make an independent determination

concerning the issue and instead relied solely on the jury’s verdict of guilty as to

one of the charged offenses.

Consistent with U.S.S.G. § 5C1.2’s directive that the safety valve is

applicable if “the court finds that the defendant meets the criteria,” a district

court is required to make an independent determination whether the criteria

have been met. See United States v. McCrimmon, 443 F.3d 454, 457-58 (5th Cir.

2006). However, the record indicates that the court did not solely base its

decision on the jury’s verdict and that it instead reached an independent

determination. Additionally, in light of conflicting evidence at trial concerning

Martinez’s truthfulness and the jury’s verdict of guilt as to one of the charged

offenses, a determination that Martinez did not meet her burden of showing that

she had been truthful and thus entitled to safety valve relief was plausible in

light of the record as a whole. See U.S.S.G. § 5C1.2; 18 U.S.C. § 3553(f);

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No. 10-50381

McCrimmon, 443 F.3d at 457; United States v. Powers, 168 F.3d 741, 753 (5th

Cir. 1999). Accordingly, the district court did not commit clear error in denying

Martinez safety valve relief. See McCrimmon, 443 F.3d at 457.

AFFIRMED.

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