Case: 13-51150 Document: 00512845169 Page: 1 Date Filed: 11/21/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-51150
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
November 21, 2014
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
BENITO MARTINEZ, also known as Benny,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:12-CR-2108-2
Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
Benito Martinez appeals from his conviction of one count of conspiracy
to possess with intent to distribute five kilograms or more of cocaine and two
counts of possession with intent to distribute five kilograms or more of cocaine
and aiding and abetting. He argues that the district court admitted into
evidence recorded conversations between him and a confidential informant in
violation of 18 U.S.C. § 2511 and 18 U.S.C. § 2515 because the Government
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 13-51150 Document: 00512845169 Page: 2 Date Filed: 11/21/2014
No. 13-51150
failed to establish that the confidential informant voluntarily consented to the
recordings.
Because Martinez objected to the admission of the recordings below, we
review the district court’s decision to admit the evidence under a heightened
abuse of discretion standard. See United States v. Garcia, 530 F.3d 348, 351
(5th Cir. 2002). An abuse of discretion occurs when the disputed ruling is
grounded in a clearly erroneous factual finding or a legal error. Id. If a factual
finding is plausible in light of the record as a whole, it is not clearly erroneous
and should be upheld. United States v. Alaniz, 726 F.3d 586, 618 (5th Cir.
2013).
For consent to intercept an electronic communication to be valid, the
consent must be voluntary and free from coercion. United States v. Juarez, 573
F.2d 267, 278 (5th Cir. 1978). “Voluntariness is a question to be determined
from the totality of the circumstances.” United States v. Tomblin, 46 F.3d
1369, 1377 (5th Cir. 1995).
The totality of the circumstances indicates that the confidential
informant voluntarily consented to the recordings. See id. Because the district
court’s finding that the confidential informant consented to the recordings is
plausible in light of the record as a whole, the district court did not abuse its
discretion by admitting the recordings into evidence. See Alaniz, 726 F.3d at
618; Garcia, 530 F.3d at 351. Accordingly, the judgment is AFFIRMED.
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