United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 16, 2006 Decided February 16, 2007
No. 06-3031
UNITED STATES OF AMERICA,
APPELLEE
v.
WILLIAM ELIU MARTINEZ,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 03cr00331-01)
John C. Belcher argued the cause and filed the briefs for
appellant.
Teresa A. Wallbaum, Appellate Counsel, U.S. Department
of Justice, argued the cause and filed the brief for appellee.
2
Before: GINSBURG, Chief Judge, and ROGERS and
KAVANAUGH, Circuit Judges.
Opinion for the Court filed by Circuit Judge KAVANAUGH.
KAVANAUGH, Circuit Judge: On March 16, 1999, in
Guatemala, U.S. Drug Enforcement Administration agents and
Guatemalan officials intercepted a land shipment of cocaine
from Colombia to the United States that was worth well over
$10 million. As a result of its investigation, the U.S.
Government later arrested and brought criminal charges against
William Eliu Martinez, a former government official from El
Salvador, for his involvement in this cocaine shipment. The
grand jury indictment charged Martinez with distributing
cocaine and conspiring to import cocaine into the United States.
After a jury trial in the District of Columbia, Martinez was
convicted and sentenced to 29 years in prison. Martinez appeals
his conviction; he challenges the admission of certain evidence
at trial, the sufficiency of the evidence supporting his
conviction, and the District Court’s jury instructions. Martinez’s
arguments are without merit, and we affirm.
I
Because this is an appeal from a conviction, we recount the
relevant facts in the light most favorable to the Government.
From the fall of 1998 until at least the summer of 2000, William
Martinez participated in a conspiracy to import cocaine from
Colombia into the United States. The co-conspirators shipped
the cocaine via the Pacific Ocean from Colombia to El
Salvador – and then transported the cocaine in trucks north from
El Salvador through Guatemala and Mexico into the United
States.
3
According to voluntary statements that Martinez provided
to Drug Enforcement Administration agents upon his arrest,
Martinez entered the cocaine conspiracy after contact with an
individual named Chino whom Martinez met when Martinez
lived in Houston, Texas, in the 1990s. After Martinez moved
back to El Salvador in 1998, Chino contacted Martinez about an
opportunity for Martinez to participate in a business operation
with several men from Guatemala – Otto Herrera, Guillermo
Herrera, and Byron Linares – who were part of an enterprise
referred to as the “Otto Herrera Drug Trafficking Organization.”
In the latter part of 1998, Martinez began participating in this
drug conspiracy; Martinez was aware that the business involved
international cocaine trafficking.
The evidence at trial demonstrated that Martinez supervised
several key aspects of the operation – including receiving
Colombian cocaine in El Salvador and helping to prepare the
cocaine for transportation north. In August 1998, for example,
Martinez purchased vessels known as “go-fast” boats that
traveled from the coast of El Salvador into the Pacific Ocean to
receive the cocaine from large vessels coming from Colombia.
In addition, Martinez rented several properties in El Salvador to
store the boats and to temporarily stash the cocaine until the
operation was ready to transport the cocaine north from El
Salvador. Martinez built high walls so that outsiders could not
see onto the property.
Martinez took steps to prevent local authorities in Central
America from discovering the operation. For instance, Martinez
attempted to ensure that vehicles transporting the cocaine within
El Salvador would not be detained by the police. On one
occasion, Martinez used his congressional position to intervene
when local law enforcement officers stopped a pick-up truck
towing one of Martinez’s boats.
4
Martinez recruited and paid individuals who on multiple
occasions used his boats to transport cocaine. According to
testimony of a man named Sabas and his father-in-law Revelo,
who were lower-level workers in the operation, Martinez
himself typically did not travel on the boats to obtain the
cocaine, but he did help unload it at the rental properties.
Martinez also oversaw the re-loading of the cocaine onto pick-
up trucks; those trucks in turn transported the cocaine to another
site where the cocaine was loaded onto larger trucks for north-
bound international transportation. During the unloading of the
cocaine from Martinez’s boats, Martinez regularly stood by with
a gun while supervising Sabas, Revelo, and others.
At trial, Sabas and Revelo (the two lower-level insiders)
recounted Martinez’s role with respect to the specific March
1999 cocaine shipment. While Martinez waited on land, Sabas
and several others traveled out into the Pacific Ocean to meet a
large vessel carrying the cocaine. Once Martinez’s boats
reached the larger vessel, individuals on that larger vessel tossed
the large black bales of cocaine onto the smaller boats. The
large bales each contained as many as 36 “bricks” of cocaine.
When the boats returned to shore, Martinez was waiting and
armed. Martinez helped remove the boats from the water and
covered them with a tarp for temporary storage. Martinez also
observed the re-loading of the cocaine onto pick-up trucks for
transportation to the site where three larger trucks waited to
transport the cocaine north. According to Sabas, Martinez told
Sabas that the bales contained cocaine. Martinez also warned
Sabas that Sabas and his family could be killed if Sabas told
anyone about the cocaine operation.
On March 16, 1999, the DEA and Guatemalan National
Police seized cocaine from the three large trucks transporting the
cocaine just after the trucks crossed the border from El Salvador
into Guatemala.
5
The DEA and Guatemalan police conducted the March 16,
1999, seizure based on information that DEA officers received
from an informant named Lopez who was also involved with the
Herrera Organization. Three days earlier, Lopez began
providing information to the DEA about the Herrera
Organization’s transportation of cocaine from Colombia through
Nicaragua, El Salvador, Guatemala, and Mexico, and ultimately
to the United States. On March 16, Lopez informed the DEA
that the cocaine shipment would occur later that day. Lopez
indicated the trucks would be “traveling northbound on [the]
intercontinental highway that was the transit to Guatemala” and
“that traverses through the country of Guatemala towards
Mexico.” J.A. 594-95, 752 (Moren Testimony). During the
course of his conversations with the DEA, Lopez also stated that
the cocaine shipment was ultimately destined for the United
States.
Lopez’s information enabled the DEA and the Guatemalan
National Police to seize the shipment just after the trucks
crossed the border into Guatemala on the Pan-American
Highway. The three trucks contained a total of 2,556 kilograms
of cocaine. Each kilogram “brick” of cocaine was wrapped in
brown packaging tape, and some “bricks” were labeled with
logos, such as an American flag with an eagle or the words
“Mobil Super Plus.” (One of the Government’s witnesses,
former Agent Michael Garland, provided expert testimony that
drug traffickers use such logos to help give delivery instructions
to individuals distributing the cocaine.)
The day after the seizure, Lopez informed the DEA that
several individuals involved with the conspiracy had expressed
anger over the thwarted operation. Then on March 19, Lopez
told the DEA about the conspirators’ future plans to transport
more cocaine up through Guatemala and Mexico. A few days
later, Lopez was shot and killed in Guatemala City, Guatemala.
6
(Because of Lopez’s unavailability at trial, Agent Daniel Moren,
one of the officers who recruited Lopez, testified about the
statements that Lopez provided to the DEA.)
The United States subsequently brought a two-count federal
grand jury indictment against Martinez and arrested him in
Central America. The counts in the indictment were:
(1) “conspiracy to knowingly and intentionally import five
kilograms or more of a mixture and substance containing a
detectable amount of cocaine . . . into the United States,” see 21
U.S.C. §§ 952(a), 960(a), and 963; and (2) “knowingly and
intentionally manufacturing or distributing five kilograms or
more of a mixture and substance containing a detectable amount
of cocaine . . . intending . . . or knowing that such substance
would be unlawfully imported into the United States,” see 21
U.S.C. § 959(a). J.A. 222 (Verdict Form). Following a nine-
day trial, a jury convicted Martinez of both counts.
II
On appeal, Martinez raises four main arguments. First,
Martinez challenges the admission of the hearsay statements of
Lopez, the deceased informant. Second, Martinez contests the
admission of Garland’s expert testimony that the United States
is the typical destination for Colombian cocaine transported
through Central America. Third, Martinez contends there was
insufficient evidence for a reasonable jury to find that Martinez
knew the destination of the cocaine shipment was the United
States. And fourth, Martinez argues that the jury instructions
were flawed.
7
A
Martinez contends that Lopez’s statements do not satisfy
the requirements of the Rule 804(b)(6) hearsay exception. He
also argues that admission of the statements violated the Sixth
Amendment’s Confrontation Clause.
1. The District Court admitted Lopez’s statements under
the hearsay exception in Rule 804(b)(6). That Rule allows
admission of hearsay statements made by an unavailable
declarant if the statements are “offered against a party that has
engaged or acquiesced in wrongdoing that was intended to, and
did, procure the unavailability of the declarant as a witness.”
The District Court concluded by a “preponderance of the
evidence” that the circumstances of Lopez’s death satisfied the
requirements of Rule 804(b)(6). See United States v. Carson,
455 F.3d 336, 362 (D.C. Cir. 2006). In particular, the District
Court concluded that Martinez’s co-conspirators murdered
Lopez to procure his unavailability as a witness and Martinez
was aware that his co-conspirators were willing to engage in
murder to protect the conspiracy. See United States v.
Thompson, 286 F.3d 950, 963-65 (7th Cir. 2002); United States
v. Cherry, 217 F.3d 811, 820-21 (10th Cir. 2000).
Martinez suggests that the evidence does not support the
conclusion that the Herrera Organization was responsible for
Lopez’s death. We review the District Court’s contrary factual
conclusion for clear error. Carson, 455 F.3d at 362. We agree
with the District Court that Martinez’s argument is
unpersuasive.
To begin with, as the District Court explained, Martinez’s
earlier threat to Sabas and Sabas’s family showed that Martinez
and his co-conspirators considered murder to be “a possible
8
sanction to protect the privacy of the conspiracy.” J.A. 636-38
(District Court determination of admissibility of Lopez’s
statements). In Lopez’s case, that tactic was employed. Lopez
was shot and killed within a few weeks of the seizure of 2,556
kilograms of cocaine that Martinez and the Herrera Organization
conspired to import into the United States. That cocaine would
have been worth well over $10 million if it had reached its final
destination. And Lopez was the informant who helped law
enforcement uncover the conspiracy.
Revelo was an insider, and he testified that he learned from
a man named Pedro (who worked closely with Martinez and the
Herrera Organization) that Lopez was killed by individuals
associated with the March 16th shipment. Pedro stated that the
shipment was “taken down” due to Lopez’s communication with
the police. J.A. 617-24 (Jorge Martinez Testimony), 638-41
(District Court admission of Pedro’s statements under co-
conspirator hearsay exception, Rule 801(d)(2)(E)).
To be sure, upon its initial investigation, the Guatemalan
National Police apparently believed that Lopez’s death might be
tied to an altercation between Lopez and several individuals
unrelated to the March 16th cocaine shipment, and the police
arrested four individuals on that ground. But Agent Moren
testified that he believed the Guatemalan police later released
those four individuals. In any event, given Pedro’s statements
and Sabas’s testimony, the District Court did not clearly err in
determining that the Herrera Organization was in fact
responsible for Lopez’s death for purposes of Rule 804(b)(6).
Even assuming Lopez was killed by the Herrera
Organization, Martinez argues that Lopez’s murder was not
“intended to” procure Lopez’s unavailability as a witness.
Instead, Martinez contends that the Herrera Organization would
have murdered Lopez to retaliate for the loss of the March 16th
9
cocaine shipment. Martinez’s argument is based on a false
either-or dichotomy. It is surely reasonable to conclude that
anyone who murders an informant does so intending both to
exact revenge and to prevent the informant from disclosing
further information and testifying. See Carson, 455 F.3d at 360-
61 & n.21, 364 n.23. The two purposes often go hand-in-glove,
and this case is just another good example. Martinez’s argument
would have the perverse consequence, moreover, of allowing
criminals to murder informants and thereby prevent admission
of the informants’ statements – just so long as the criminal could
show that the intent was retaliation (which the criminal almost
always could do). The text of Rule 804(b)(6) does not support
such an absurd and dangerous principle.
2. Controlling Supreme Court precedent forecloses
Martinez’s related contention that the admission of evidence
under the “forfeiture by wrongdoing” hearsay exception could
nonetheless violate the Confrontation Clause. A defendant
forfeits the constitutional right to confront a witness “when,
through his misconduct, he causes the witness to be
unavailable.” Carson, 455 F.3d at 361-63 & n.22; see also
Davis v. Washington, 126 S. Ct. 2266, 2280 (2006) (“[O]ne who
obtains the absence of a witness by wrongdoing forfeits the
constitutional right to confrontation.”); Crawford v. Washington,
541 U.S. 36, 62 (2004) (“[T]he rule of forfeiture by wrongdoing
(which we accept) extinguishes confrontation claims on
essentially equitable grounds . . . .”).
B
Martinez raises three challenges to the District Court’s
admission under Federal Rule of Evidence 702 of former DEA
Agent Garland’s expert testimony. We review Martinez’s
challenges to Garland’s testimony for abuse of discretion. See
United States v. Mejia, 448 F.3d 436, 448 (D.C. Cir. 2006).
10
1. Expert testimony about the methods of drug
organizations is common in drug cases. Here, Garland testified
that the United States was the most likely destination of
Colombian cocaine transported through Central America.
Martinez argues that Garland’s expert testimony was
duplicative of other testimony and therefore could not have
assisted the trier of fact as required by Rule 702. Rule 702
provides: “If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualified as an
expert . . . may testify thereto in the form of an opinion or
otherwise . . . .” Garland’s expert testimony – that cocaine
transported from Colombia through Central America is almost
always headed to the United States – is entirely distinct from the
factual statements by other witnesses that Martinez cites as
duplicative. Expert testimony about general trafficking routes
does not duplicate factual testimony indicating that Martinez’s
particular conspiracy imported cocaine into the United States.
2. Martinez next contends that the Government failed to
provide a written pre-trial summary of the expert testimony.
That argument is factually inaccurate. Rule 16 of the Federal
Rules of Criminal Procedure requires that “[a]t the defendant’s
request, the government must give to the defendant a written
summary of any testimony that the government intends to use
under Rules 702, 703, or 705 of the Federal Rules of Evidence
during its case-in-chief at trial.” In this case, the Government
satisfied Rule 16 by indicating in writing approximately six
weeks before trial that Garland would testify about the method
of importing Colombian cocaine into the United States via
Central America. The Government provided that information in
its Opposition to Defendant’s Motion to Exclude Government’s
Expert Testimony and the affidavits by Garland submitted along
with the Opposition.
11
3. Martinez also argues that Garland improperly provided
opinion testimony regarding Martinez’s specific knowledge that
the cocaine was headed to the United States. Martinez relies on
Rule of Evidence 704(b), which states: “No expert witness
testifying with respect to the mental state or condition of a
defendant in a criminal case may state an opinion or inference
as to whether the defendant did or did not have the mental state
or condition constituting an element of the crime charged . . . .”
But the record makes clear that Garland did not testify about
Martinez’s particular mental state. Garland answered the
“United States” in response to a question about where
Colombian cocaine transported north was “generally” headed –
not to a question about where Martinez thought the cocaine was
headed. This Court recently held that very similar testimony (by
the same expert witness Garland) about the methods of South
and Central American drug trafficking operations did not
include an improper opinion regarding the defendant’s mental
state under Rule 704(b); in that case, the District Court
immediately clarified Garland’s lack of personal knowledge of
the defendant’s mental state. See Mejia, 448 F.3d at 449 & n.9.
Here, Garland stated during cross-examination that he had no
personal knowledge of the Herrera Organization, thereby
mitigating any risk that his statement would be misinterpreted.
As in Mejia, “it is plain that Garland was testifying about drug
organizations in general” – not about Martinez in particular. Id.
C
Martinez contends that there was insufficient evidence for
a reasonable jury to conclude that he had knowledge or intent
regarding the U.S. destination of the cocaine, as required under
the distribution and conspiracy offenses with which Martinez
was charged. We will not reverse a jury conviction on
sufficiency grounds “unless, reviewing the evidence in the light
most favorable to the Government, a reasonable jury could not
12
have found guilt beyond a reasonable doubt.” United States v.
Chan Chun-Yin, 958 F.2d 440, 443 (D.C. Cir. 1992) (internal
quotation omitted); see also United States v. Gomez, 431 F.3d
818, 819 (D.C. Cir. 2005). In reviewing the evidence, we keep
in mind that proof of Martinez’s intent or knowledge “may take
the form of circumstantial as well as direct evidence.” Chan
Chun-Yin, 958 F.2d at 443; see also Mejia, 448 F.3d at 451.
The evidence plainly establishes that Martinez knew he was
involved in an international drug distribution conspiracy (with
the Herrera Organization). The evidence also establishes that
Martinez knew about the large and valuable March 1999 cocaine
shipment and was deeply involved in supervising its transport.
The evidence demonstrates that the Herrera Organization
transported drugs to the United States. The evidence further
shows that the March 1999 shipment was in fact headed to the
United States when it was intercepted on the Pan-American
Highway in Guatemala. Notwithstanding those facts, Martinez
argues that a reasonable jury could not find that Martinez knew
the United States was the destination of the cocaine that he
helped to transport. In light of the above facts alone, that is
obviously a very difficult argument for Martinez to maintain.
Moreover, a plethora of additional circumstantial evidence
further confirms a reasonable jury could find that Martinez had
the requisite knowledge of the U.S. destination of cocaine.
• Martinez personally and closely supervised many key
aspects of the international transportation of this massive
shipment of cocaine. He owned the boats that acquired the
Colombian cocaine from large ships in the Pacific Ocean and
transported the cocaine back to El Salvador. He hired and paid
the drivers of those boats and threatened one of those employees
with death if he told the police about Martinez’s operation. In
addition, Martinez oversaw the unloading of the cocaine at
properties in El Salvador, which Martinez had rented and
13
renovated to store the cocaine and hide it from public view.
Martinez also supervised the re-loading of the cocaine onto
pick-up trucks, which transported the cocaine to the trucks that
drove the cocaine into Guatemala. Given Martinez’s
supervisory role, it strains credulity to suggest he did not know
the United States was the ultimate destination.
• There is direct evidence that many of the lower-level
individuals involved with the March 16th shipment of cocaine
knew the cocaine was headed to the United States. For example,
Lopez, who drove one of the three trucks transporting the
cocaine seized on March 16 from the El Salvador-Guatemala
border to a storage site within Guatemala, knew that the co-
conspirators were transporting the cocaine to the United States.
Lopez also informed the DEA that five other lower-level
participants knew the shipment was going to the United States.
If lower-level participants in the operation knew that the United
States was the destination of the cocaine, it certainly stands to
reason that a hands-on supervisor such as Martinez also knew as
much.
• Martinez oversaw the unloading of the cocaine from his
boats and the re-loading of the cocaine onto pick-up trucks for
eventual international transportation. Martinez’s role in the
operation provided him with many opportunities to see the
cocaine “bricks” – and at least one delivery logo used on the
cocaine seized on March 16 was visibly related to the United
States, as it included an American flag and eagle. (Garland
testified about the practice of drug conspiracies transporting
“bricks” of cocaine packaged with logos that communicate
delivery instructions; and some of the cocaine seized on March
16 bore the same logos as cocaine later discovered in the United
States.)
14
• Martinez had reason to know that the organization
generally transported cocaine into the United States because
Martinez learned of the conspiracy from Chino when both
Martinez and Chino lived in the United States.
• Former DEA Agent Garland testified based on his
extensive experience that almost every drug operation that
transports Colombian cocaine by land through Central America
intends to import the cocaine into the United States. Moreover,
according to Garland, the Pan-American Highway is the typical
route used by drug traffickers who transport drugs through
Central America. That highway is the route the three trucks
were traveling when law enforcement seized the Herrera
Organization’s cocaine in Guatemala on March 16, 1999. In
general, only organizations intending to import cocaine into the
United States would have reason to transport cocaine north via
the Pan-American Highway. As Garland explained, those who
transport Colombian cocaine from Colombia to overseas
destinations, such as Europe or Australia, do not ordinarily first
ship it by land through Central America because there is no
logical reason to do so. Nor, Garland indicated, would
Guatemala or Mexico be the likely destination of Colombian
cocaine shipped north from El Salvador by land, because the
sales price of cocaine (and thus the profits of the drug trafficking
organization) increase dramatically when the drugs are sold in
the United States. This expert testimony suggests that a
sophisticated drug trafficker like Martinez would be well aware
that drugs moving north on the Pan-American Highway – as this
shipment was – were destined for the United States.
The evidence regarding Martinez’s intent and knowledge
about the U.S. destination of the cocaine was plenty sufficient
for a reasonable jury to convict, especially when considered in
light of decisions in this and other circuits examining the mens
rea requirements of these statutes. See, e.g., Mejia, 448 F.3d at
15
451-52, 459; Chan Chun-Yin, 958 F.2d at 443-44; United States
v. Bollinger, 796 F.2d 1394, 1405 (11th Cir. 1986); United
States v. Bascaro, 742 F.2d 1335, 1360 (11th Cir. 1984); United
States v. Conroy, 589 F.2d 1258, 1269-71 (5th Cir. 1979).
Martinez relies heavily on United States v. Londono-Villa,
930 F.2d 994 (2d Cir. 1991). The Second Circuit in Londono-
Villa overturned a jury verdict based on insufficient evidence of
the defendant’s intent regarding the U.S. importation of cocaine.
930 F.2d at 1001. Three aspects of Londono-Villa, however,
make that case quite different from this one. First, the defendant
in Londono-Villa had a much smaller role in the operation that
imported cocaine to the United States than the multi-faceted
supervisory role Martinez played in this conspiracy – meaning
there was less basis to conclude that the defendant in Londono-
Villa necessarily would have known of the conspiracy’s basic
methods and objectives. See id. at 995-96. Unlike Martinez’s
supervisory role, the defendant in Londono-Villa flew from
Panama to Colombia simply to guide the pilot to a particular
Colombian airstrip, and he worked for a different organization
than the conspirators who trafficked the cocaine. See id.
Second, the defendant in Londono-Villa became involved
only at the end of the cocaine operation. Id. at 1001. By
contrast, Martinez helped to lay the groundwork for significant
portions of international cocaine shipments – acquiring boats,
hiring employees, and renting and renovating properties to help
store the cocaine. Therefore, it was entirely reasonable for the
jury in Martinez’s case to conclude that his participation in
many phases of the cocaine operation showed his knowledge
that the ultimate objective of the operation was to import
cocaine into the United States.
Third, unlike Martinez’s awareness of his cocaine’s
transportation from Colombia through Central America, the
16
Londono-Villa defendant’s awareness that the conspiracy
transported drugs from Colombia to Panama would not
necessarily have informed the defendant that the cocaine was
headed to the United States. That is because Panama (which is
contiguous with Colombia) is apparently sometimes used as an
intermediate shipping point for drugs imported into countries
other than the United States. See id. at 996. By contrast, in this
case, the evidence showed that the “likelihood is extremely
remote” that any Colombian cocaine transported north-bound
along the highways of El Salvador and Guatemala would be
destined for a location other than the United States. J.A. 818-21
(Garland Testimony).
Martinez also cites United States v. Samad, 754 F.2d 1091
(4th Cir. 1984). That case has no relevance here. Because the
defendants in Samad were in the United States when they
illegally received heroin, the evidentiary issue concerned
whether the defendants knowingly received drugs – not whether
defendants who knowingly transported drugs also knew the
drugs’ ultimate destination. See id. at 1096-99.
D
Martinez challenges the District Court’s instructions to the
jury. Because Martinez failed to object at trial to the jury
instructions, we review these arguments for plain error. See
Fed. R. Crim. P. 52(b).
1. Martinez contends that the jury instructions regarding
the distribution charge against Martinez were “improper and
confusing” because the District Court one time referred to the
offense as “distribution of a controlled substance” rather than
“distribution of a controlled substance knowing or intending that
it would be imported into the United States.” Appellant’s Br. at
58-60 (internal quotations omitted). According to Martinez, the
17
characterization of a crime of “distribution” was especially
problematic because the requirement of U.S. importation is the
aspect of Martinez’s distribution conviction that Martinez is
challenging.
To begin with, the District Court’s one-time identification
of the offense as “distribution of a controlled substance” was
accurate because that description merely restated the title of the
offense as it appears in Section 959 of Title 21 of the U.S. Code.
Moreover, the district judge repeatedly told the jurors the charge
of distributing cocaine required that Martinez know or intend
that the cocaine would be imported into the United States.
Indeed, on no less than six occasions, the District Court
characterized the distribution offense as a crime involving
knowledge or intent regarding U.S. importation.
The district judge’s repeated instructions that a distribution
conviction requires proof of knowledge or intent regarding U.S.
importation clearly sufficed to inform the jury of the elements
of the offense. Joy v. Bell Helicopter Textron, Inc., 999 F.2d
549, 556 (D.C. Cir. 1993).
2. Martinez next argues that the District Court failed to
adequately respond to a jury note asking whether the conspiracy
count required proof that Martinez knew about every unlawful
objective of his co-conspirators, including the U.S. importation
of the cocaine. In particular, the jury note asked the District
Court to clarify an apparent inconsistency between the verdict
form and the jury instructions received prior to jury
deliberations. The verdict form indicated that conviction
required knowledge or intent regarding U.S. importation, but the
jury instructions at one point stated: “Furthermore, a defendant
need not have been informed of the full scope of the conspiracy,
nor need he be shown to have joined in all of the conspiracy’s
unlawful objectives in order for you to infer that he joined the
18
conspiracy knowingly.” J.A. 937 (Jury Instructions). In
response to the note, the District Court clarified that conviction
of the conspiracy charge required proof of Martinez’s
knowledge or intent regarding U.S. importation. The District
Court also directed the jury to an earlier page of the jury
instructions, which described the knowledge or intent
requirement for Martinez’s conviction.
Martinez contends that the District Court’s response was
inadequate because it merely referred jurors back to the portion
of the instructions that had confused them. But the District
Court did not refer the jury back to the instructions about
conspiracy that prompted the jury question; instead the judge
referred the jury (correctly) to an entirely different segment of
the instructions regarding the intent and knowledge requirement.
In other words, the District Court resolved the question in a way
favorable to Martinez. That is no doubt why Martinez’s trial
counsel did not object to the District Court’s response to the
question from the jury.
***
The judgment of conviction is affirmed.
So ordered.