IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-51022
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN MARTINEZ, SR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. DR-96-CR-265-1
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February 4, 1999
Before DAVIS, DUHÉ, and PARKER, Circuit Judges.
PER CURIAM:1
Juan Martinez, Sr., appeals his conviction and sentence after
being convicted of conspiracy to possess marijuana with intent to
distribute and possession of marijuana with intent to distribute.
After reviewing the record and the briefs of the parties, we
AFFIRM.
Martinez argues that the Government engaged in deliberate
misconduct when it questioned the case agent, Deputy Larry Pope,
about an extrajudicial statement made by Martinez’s son, which
1
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that this opinion should not be published and is not precedent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.
purportedly incriminated Martinez. Martinez contends that the
Government’s misconduct violated Federal Rule of Evidence 704 and
the Supreme Court’s decision in Bruton v. United States, 391 U.S.
123 (1968).2 Because Martinez failed to object to the pertinent
portions of Deputy Pope’s testimony, he is limited to plain-error
review on his claims. See United States v. Aggarwal, 17 F.3d 737,
743 (5th Cir. 1994); United States v. Jobe, 101 F.3d 1046, 1068
(5th Cir. 1996).
Martinez’s contention that the Government violated Federal
Rule of Evidence 704 when it elicited Deputy Pope’s opinion
concerning Martinez’s guilt or innocence is not supported by the
record. Because the record does not indicate that the Government
questioned Pope about Martinez’s guilt or mental state, Martinez
has not shown any error, much less plain error, with respect to his
claim. See United States v. Webster, 960 F.2d 1301, 1309 (5th Cir.
1992).
Martinez likewise has not shown plain error with respect to
his Bruton claim. First, the portion of the son’s extrajudicial
statement that was elicited by defense counsel on cross-examination
of Pope did not directly incriminate Martinez “without reference to
other, admissible evidence.” See Jobe, 101 F.3d at 1066.
According to Pope’s testimony on cross-examination, Juan Martinez,
Jr., told him that he was relaying a message for his father to have
2
Martinez also states in his issue heading that the
Government’s misconduct violated his rights to due process and to
the effective assistance of counsel. Martinez, however, has
abandoned these issues by failing to address them in the body of
his brief. United States v. Valdiosera-Godinez, 932 F.2d 1093,
1099 (5th Cir. 1991).
the other coconspirators meet his father at a bar in Mexico. This
portion of the son’s extrajudicial statement, standing alone, did
not show that Martinez possessed marijuana with intent to
distribute or conspired to possess marijuana with intent to
distribute. See Jobe, 101 F.3d at 1066-67, 1067 n.28.
Second, although Martinez acknowledges that portions of his
son’s extrajudicial statement were elicited by his son’s defense
counsel, he complains only about the Government’s conduct in this
case. The record does not support Martinez’s contention that the
Government sought to transform his son’s extrajudicial statement
implicating him “into believable inculpatory statements by
eliciting Deputy Pope’s personal opinion as to [his] guilt.” The
only exchange on redirect examination which arguably raised any
Bruton concerns occurred when the prosecutor asked Pope why he did
not arrest Martinez, Jr., at the same time he arrested the four
other coconspirators. Pope replied:
I knew Juan Martinez, Jr. was lying to me about some
things. I knew he had some kind of association with
these people. They claimed he was -- that he was giving
them directions for dad and that they’d received
directions from dad for transporting dope. I figured I
could find Juan Martinez, Jr. later if I needed to. And
I needed to substantiate something.
(emphasis added). Although this testimony tends to incriminate
Martinez, Sr., on its face, Pope did not attribute this statement
to Martinez, Jr. Rather, he used the pronoun “they,” attributing
the statement to the other coconspirators. Because those
coconspirators were not tried jointly with Martinez and because
they testified at trial and were cross-examined by Martinez’s
counsel, no Bruton violation occurred. See Jobe, 101 F.3d at 1066
(Bruton implicated only when codefendants are tried jointly and
confessor does not take stand and is therefore not subject to
cross-examination). Martinez has not shown clear or obvious error
with respect to his Bruton claim. See United States v. Calverley,
37 F.3d 160, 162-64 (5th Cir. 1994)(en banc).
Next, Martinez argues that there was insufficient evidence to
support his conviction for conspiracy to possess marijuana with
intent to distribute. This argument is also without merit. The
testimony of Melissa Miller, David Powell, Carol Henderson, and
Stacy Eric Finley provided ample evidence from which a rational
trier of fact could have found all the essential elements of a 21
U.S.C. § 846 conviction beyond a reasonable doubt, including that
Martinez voluntarily participated in the conspiracy. See United
States v. Polk, 56 F.3d 613, 619 (5th Cir. 1995).
Martinez also challenges his sentence. First, he argues that
the district court’s determination that his offense conduct
involved more than 1,000 kilograms of marijuana was not supported
by any reliable evidence. Next, he argues that the district court
failed to make foreseeability findings with respect to the drug
quantities attributed to him. Finally, he argues that the district
court violated Federal Rule of Criminal Procedure 32(c)(1) when it
failed to resolve his objection to the quantity of drugs attributed
to him.
Martinez’s presentence report (PSR) stated that he had
supervised approximately 2,685 pounds, or 1,217 kilograms, of
marijuana. The district court subsequently adopted the factual
findings of the PSR in its written judgment. Martinez’s PSR was
sufficiently reliable evidence upon which the district court could
base its drug-quantity determination, and the district court’s
drug-quantity determination was not clearly erroneous. See United
States v. Mir, 919 F.2d 940, 943 (5th Cir. 1990)(when defendant
fails to offer rebuttal evidence to refute facts in PSR, district
court is free to adopt those facts without further inquiry); United
States v. Fitzgerald, 89 F.3d 218, 223 (5th Cir. 1996)(quantity of
drugs attributable to a defendant is a factual finding which is
reviewed for clear error). Moreover, the district court was not
required to make foreseeability findings because the record
indicates that Martinez’s sentence was based on quantities of
marijuana with which he was personally involved. See United States
v. McKinney, 53 F.3d 664, 677 (5th Cir. 1995). Finally, the
district court complied with Rule 32(c)(1) when it overruled his
drug-quantity objection at sentencing and adopted the factual
findings of the PSR in its written judgment. See United States v.
Mora, 994 F.2d 1129, 1141 (5th Cir. 1993).
AFFIRMED.