UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 91-7212
UNITED STATES OF AMERICA,
PLAINTIFF-APPELLEE,
VERSUS
LUIS MARTINEZ,
DEFENDANT-APPELLANT.
Appeal from the United States District Court
For the Southern District of Mississippi
(October 6, 1992)
Before REYNALDO G. GARZA, DAVIS and BARKSDALE, Circuit Judges.
REYNALDO G. GARZA, Circuit Judge:
Appellant, Luis Martinez, challenges his conviction of
conspiracy to possess with intent to distribute 1.56 kilograms of
cocaine in violation of 21 U.S.C. 846. Finding no reversible error
we AFFIRM.
Background
On December 29, 1988 a Juan Castellanos used his credit card
to rent a car in Miami and designated his brother-in-law, Martinez,
as an authorized driver. Martinez, together with his wife and two
children, proceeded to their destination, New Orleans. The vehicle
broke down in Daytona on December 30 and Martinez signed for a
replacement, a white Ford Tempo. They arrived in New Orleans on
December 30 and were reunited with an old-time friend, Juan
Peinado. Martinez testified that he then gave the car to a Carlos
Sacerio on January 3rd to return to Miami by the 4th, the due date,
to avoid the drop-off fee.
On January 6th, Mississippi State Highway Patrolman Howard
Potts stopped the vehicle in Gulfport for speeding as it was
heading west on Interstate 10 towards New Orleans. The driver, an
Oscar Rubio, showed Potts the rental papers showing Martinez as an
authorized driver. Rubio told the officer that he was delivering
the car to Luis Martinez in New Orleans. He went on to say that
Martinez had spoken to him on the phone in Miami and had told Rubio
that he wanted to fly back to New Orleans. Officer Potts impounded
the vehicle because Rubio's license was suspended and he wasn't an
authorized driver according to the rental papers in his possession.
Rubio consented to the vehicle being searched and actually fell
asleep during the wait. At that time the search failed to reveal
anything suspicious and Rubio was driven to the Gulfport bus
station. The car's odometer indicated that the car had been driven
2,891 miles since Martinez initially got it in Daytona. The
mileage was consistent with testimony that the car was driven to
New Orleans, back to Miami and then again North through Florida and
then West to Gulfport, 60 miles outside of New Orleans.
Rubio testified that he then called Martinez who instructed
him to proceed to New Orleans and that he would pay for his trip
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back to Miami. Armand Baralt, an attorney from New Orleans,
testified that Martinez hired him at $60 an hour to help him get
the car back. There was a meeting the next day, Saturday the 7th,
at the Howard Johnson's hotel in New Orleans that was attended by
Martinez, Peinado, Sacerio, Rubio and Baralt. The situation was
discussed at length and Baralt proceeded to call Hertz using the
alias of Lee Collins to find out how to retrieve the vehicle.
Officer Potts had left instructions to be notified regarding any
inquiries for the vehicle. Officer Potts ordered another search
when his suspicion was aroused and discovered 1.56 kilograms of
cocaine hidden in the car's steering column and dashboard. After
several phone calls to Hertz over the weekend, the group decided to
go to the Gulfport office Sunday evening, January 8th, to reclaim
the Ford Tempo.
Martinez, Peinado and Baralt arrived at the Gulfport Hertz
parking lot at 8:45 P.M., 15 minutes before closing. They waited
for a few minutes before entering the office. They walked past the
counter but returned quickly. Martinez testified that he wanted to
drive the car back to Miami to avoid a drop-off charge. Narcotics
Agent Sandefer, posing as a Hertz employee, accompanied the trio to
the car in the parking lot. Baralt walked to his car while
Martinez and Peinado went directly to the Ford Tempo. At this
point all three men were placed under arrest. Sacerio and Rubio
arrived a short time later and were also arrested.
Baralt, Peinado, Sacerio and Rubio were tried together and,
all except for Baralt, were convicted of possession of cocaine and
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conspiracy to possess cocaine with the intent to distribute.
Sacerio and Rubio's convictions were subsequently overturned for
insufficiency of evidence and Peinado has not appealed his
conviction. United States v. Sacerio, 952 F.2d 860 (5th Cir.
1992). Martinez was tried separately on both counts and was found
guilty on the conspiracy charge. He was sentenced to 97 months
imprisonment and 4 years supervised release.
Analysis
Martinez appeals his conviction on insufficiency of evidence
grounds. The standard of review for sufficiency of evidence is
whether any reasonable trier of fact could have found that the
evidence established guilt beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560
(1979); United States v. Anderson, 933 F.2d 1261, 1274 (5th Cir.
1991). All reasonable inferences from the evidence must be
construed in favor of the jury verdict. Glasser v. United States,
315 U.S. 60, 80 (1942). Determining the weight and credibility of
the evidence is within the sole province of the jury. United
States v. Pena, 949 F.2d 751, 756 (5th Cir. 1991). An appellate
court will not supplant the jury's determination of credibility
with that of its own. United States v Barron, 707 F.2d 125, 127
(5th Cir. 1983).
The jury in this case chose not to believe Martinez's
testimony. All of the evidence together meets the sufficiency
threshold to uphold the conviction. "Circumstances altogether
inconclusive, if separately considered, may, by their number and
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joint operation, especially when corroborated by moral
coincidences, be sufficient to constitute conclusive proof."
Coggeshall v. United States (The Slavers, Reindeer), 69 U.S. (2
Wall.) 383, 17 L.Ed 911, 914-15 (1865). The government had to
prove three elements to convict of drug conspiracy: 1) the
existence of an agreement to possess with intent to distribute
cocaine, 2) Martinez's knowledge of that agreement and 3)
Martinez's voluntary participation. United States v. Alvarado, 898
F.2d 987, 992 (5th Cir. 1990).
There was enough evidence to prove all three elements. First
there was the rental agreement in Rubio's possession and Rubio's
testimony that he was supposed to deliver the car directly to
Martinez in New Orleans and that when Martinez had spoken to him on
the phone in Miami, Martinez had stated that he wanted to fly
instead of driving back. Baralt, a defense witness and prior
attorney for Martinez, confirmed that indeed Martinez had told him
that he wanted to fly in from Miami and that he was expecting
delivery of the car in New Orleans. This evidence together with
the discovery of 1.56 kilograms in Martinez's rented car and his
voluntary participation in the meeting with all of the parties and
his eagerness to pick up the car personally with the other four men
all support the three necessary elements. Martinez was involved in
an agreement with others to obtain a large quantity of cocaine with
the obvious intention to distribute and his involvement throughout
was voluntary.
The rest of the facts and evidence also point to a drug
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conspiracy. Rubio testified that he called Martinez immediately
after the vehicle was impounded and that Martinez asked if he had
been arrested and then instructed him to proceed to New Orleans and
that he would pay for his trip back to Miami. There was no
testimony that Martinez had called Hertz to inquire whether his
rented car was delivered in Miami by the due date, January 4th, and
if not, to explain its delay. Logically it would be expected, at
a minimum, that Martinez would do this or possibly even report the
car missing since he testified he had not seen or heard of the car
in 3 days.
Baralt also testified that Martinez had hired him at $60 an
hour to assist him reclaim the car. This seems like an
overreaction for an innocent impoundment of a rental car due to its
use by an unauthorized driver. Martinez's contention that he was
penniless is contradicted by the testimony that he quickly hired an
attorney, that he flew in from Miami and his promise to finance
Rubio's return trip. Evidence that Martinez was well dressed when
arrested plus his apparent non-action regarding extra day charges
also weakens his argument. Martinez claimed that his clothes were
lent to him by Peinado straight from his closet. This was
suspicious since Peinado is 5 inches taller and 35 pounds heavier.
Further incriminating evidence was the meeting attended by
Martinez, Peinado, Baralt, Sacerio and Rubio. Baralt stated that
the meeting took several hours. All this effort by these 5 men is
hard to comprehend for just a simple innocent retrieval of a rented
Ford Tempo. Baralt felt compelled to use an alias, Lee Collins, to
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obtain routine information on how to reclaim the impounded rental.
Further support for the drug conspiracy was the discovery of 22
grams of cocaine found out in the open on a nightstand in the hotel
room Martinez admitted meeting in. "Although each element of the
conspiracy charge must be proved beyond a reasonable doubt, no
element need be proved by direct evidence, but may be inferred from
circumstantial evidence. An agreement may be inferred from
`concert of action.'" United States v. Espinoza-Seanez, 826 F.2d
526, 537 (5th Cir. 1988). "Unlike many other conspiratorial
offenses, section 846 does not require proof of an overt act in
furtherance of the conspiracy." United States v. Lechuga, 888
F.2d 1472, 1476 (5th Cir. 1989).
The evidence regarding the attempted reclamation on Sunday
evening, January 8th, is also persuasive. It is highly suspicious
that all five men, including a hired attorney, were needed or
interested in retrieving the vehicle, a supposedly straightforward
matter. We note that the parties knew that the car was already
searched fruitlessly and obviously did not expect further searches.
It is also interesting that Martinez, Peinado and Baralt arrived 15
minutes before closing despite their admitted anxiety. Their
desire to reclaim the vehicle did not prevent them from waiting all
day Sunday, lingering in the parking lot for 3 to 4 minutes despite
the pending closing and when they entered the premises they did not
immediately approach the counter. Perhaps they lost their
composure when they saw a male, officer Sandefer who was posing as
an employee, standing at the counter when Baralt had communicated
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with a female throughout the weekend. Martinez, flashily dressed,
signed for the car so he could drive it back to Miami. When they
were led to the parking lot both Martinez and Peinado immediately
approached the rental. Sacerio and Rubio showed up to this reunion
a short time later.
The case against Sacerio and Rubio was considerably weaker
than the evidence presented against Martinez. There was damaging
testimony against him given by several witnesses including Baralt,
who was a witness for the defense and also Martinez's own onetime
attorney. Martinez took the witness stand in his defense but was
simply not believed given the persuasive evidence pointing to his
involvement in the cocaine conspiracy. The claim that the
introduction of a transcript of Rubio's previous testimony was
reversible error is rejected. If this was error it was harmless
since Baralt testified to virtually the same facts.
Conclusion
The evidence is sufficient for a reasonable trier of fact to
find beyond a reasonable doubt that Martinez voluntarily conspired
with others to possess cocaine with the intent to distribute. For
the reasons stated above, the conviction and sentence of appellant
is in all respects
AFFIRMED.
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