United States v. Martin Teran

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-4791

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MARTIN TERAN, a/k/a El Chapin, a/k/a Daniel R. Rodriguez,
a/k/a David L. Morales Garcia, a/k/a Hugo Rolland Gomez,

Defendant - Appellant.

No. 11-4844

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JOSUE BENITEZ, a/k/a Beecho,

Defendant - Appellant.

Appeals from the United States District Court for the District
of South Carolina, at Columbia. Joseph F. Anderson, Jr.,
District Judge. (3:10-cr-00468-JFA-1; 3:10-cr-00468-JFA-2)

Argued: September 20, 2012 Decided: November 1, 2012

Before KING, GREGORY, and WYNN, Circuit Judges.
Affirmed by unpublished opinion. Judge Gregory wrote the
opinion, in which Judge King and Judge Wynn joined.

ARGUED: Joshua Snow Kendrick, Columbia, South Carolina; Jonathan
McKey Milling, MILLING LAW FIRM, LLC, Columbia, South Carolina,
for Appellants. Julius Ness Richardson, OFFICE OF THE UNITED
STATES ATTORNEY, Columbia, South Carolina, for Appellee. ON
BRIEF: William N. Nettles, United States Attorney, Columbia,
South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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GREGORY, Circuit Judge:

A federal jury convicted Appellants Martin Teran and Josue

Benitez on seven counts stemming from a murder-for-hire scheme.

Appellants argue that the verdict should be vacated because the

district court made a number of grave evidentiary errors.

Appellant Teran further argues that the district court erred in

denying his motion for acquittal on two firearms charges.

Reviewing Appellants’ numerous claims, we find each to be

without merit. Moreover, there was substantial evidence to

support Appellants’ convictions on all seven counts, rendering

any error made by the district court harmless. For the reasons

below, we affirm.

I.

One night in 2008, Appellants Martin Teran and Josue

Benitez met in Houston, Texas, at the after-hours bar “Los

Ranchos.” A Los Ranchos bouncer, Luis Sandoval, overheard Teran

recruit Benitez for a “hit.” Someone from Honduras had offered

Teran $40,000 to kill a man later identified as Jorge Ramos.

Teran offered Benitez $5,000 from the pot to shoot Ramos and

said he would supply the gun. Benitez agreed. Teran then

realized Sandoval overheard the entire conversation, and

gestured to him that he better not tell anyone what he heard.

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 On October 30, 2008, after the agreement was made,

cellphone records placed Teran and Benitez leaving Houston and

arriving in Columbia, South Carolina, a day later. Upon

arrival, Teran and Benitez checked into a local hotel and later

that day purchased a distinctive green pick-up truck with a

white door.

On November 2, 2008, in Columbia, South Carolina, Jorge

Ramos was fatally shot in front of his trailer. A witness

identified Benitez as running from behind Ramos’s trailer with a

gun. Other witnesses observed a green pick-up truck with a

white door speeding away from Ramos’s trailer. Teran and

Benitez checked out of the hotel the same day, and according to

cellphone records, left South Carolina and returned to Texas.

Back at Los Ranchos, on November 14, 2008, Sandoval called

law enforcement to inform them that he heard Benitez bragging

about a murder. In the course of bragging, Benitez provided a

number of fact-specific details about the murder. Sandoval also

told law enforcement that he observed Benitez with a firearm.

As a result of this information, Officers Moore and Vogelpohl

established surveillance outside the bar. After Los Ranchos

closed for the night, the officers witnessed Benitez getting

into the passenger seat of a white Jeep that drove away.

Officers Moore and Vogelpohl followed the Jeep and pulled

it over after observing it cross the center lane twice. Officer

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Vogelpohl approached the passenger side where Benitez was

sitting, and smelled marijuana as Benitez rolled down the

window. He asked Benitez to produce identification, which

Benitez could not do. Officer Vogelpohl ordered Benitez out of

the car, at which point the smell of marijuana became more

pronounced. Benitez made a movement towards his back pocket and

Officer Vogelpohl stopped him, believing he may have had a gun.

He handcuffed Benitez and patted him down, discovering a bag of

marijuana in Benitez’s back-pocket. Benitez was arrested, and

Officer Moore searched the passenger area of the car. In the

course of the search, he discovered a Beretta .380 pistol.

Subsequent ballistic reports determined it was the same gun used

to kill Ramos. Three days later, Teran was apprehended.

In post-Miranda statements, both Benitez and Teran

discussed the killing of Ramos, corroborating a number of

details about the murder. Benitez said, among other things,

that he was familiar with the green truck with the white door.

He explained that he and Teran left from Houston to South

Carolina, where they checked into a hotel, and later went

looking for a man in a trailer park. Teran said that he also

knew about the green and white truck, that he heard the

gunshots, and was on the phone with the get-away driver at the

time of the murder.

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 Around December 8, 2008, Teran and Benitez were extradited

by commercial airline to South Carolina. During a flight delay,

a transporting officer asked Teran if he was a member of the

gang MS-13. Teran initially responded no, but when asked again,

responded affirmatively.

While in pretrial custody in South Carolina, Teran

discussed his gang-membership and Ramos’ murder with his

cellmate. In a particularly loquacious moment, he told his

cellmate that his “brother” had been caught with the murder

weapon and that he was present at the scene when Ramos was shot;

although he was not the shooter. Teran also declared he did not

want to spend life in prison for a crime he was paid to commit.

Before trial, prison officials intercepted a coded letter

from Teran addressed to Benitez. A second coded letter from

Teran to Benitez was found in Benitez’s cell. The letters were

decoded by an FBI Cryptologist. The most scandalous parts read:

“I’m doing everything possible so that [expletive] ‘Luis’

[Sandoval] won’t come to testify against you . . . My attorneys

say that he is the ‘confidential informant’ . . . I already

sent a message to [our associates] to take care of Luis

[Sandoval].” Three days after the letters were intercepted,

Sandoval received threatening text messages in which he was

referred to as a “snitch.”

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 Appellants originally faced state murder charges in South

Carolina. A federal indictment was then filed against Teran and

Benitez on April 21, 2010. A superseding indictment was filed

December 21, 2010. Teran and Benitez were charged with

traveling in interstate commerce to commit a murder for hire

(Count 1), 18 U.S.C. § 1958; use of a firearm in relation to a

crime of violence or drug trafficking offense (Count 2), 18

U.S.C. § 924(c); being illegal aliens in possession of a firearm

(Count 3), 18 U.S.C. § 922(g)(5)(A); and illegal reentry into

the United States after being deported (Counts 4 and 5),

8 U.S.C. § 1326. Teran was also charged with witness tampering

(Count 6) and obstruction of justice (Count 7). 18 U.S.C.

§§ 1503, 1512. On January 6, 2011, Teran and Benitez entered

not guilty pleas to all seven charges, and trial began January

25, 2011. On February 10, 2011, a federal jury found Teran and

Benitez guilty on all counts, and the district judge sentenced

Teran and Benitez to life in prison on August 3, 2011.

II.

Appellants first argue that evidence used at trial was

obtained in violation of their constitutional rights and

therefore should have been suppressed. Specifically, Benitez

argues that the gun entered into evidence was found as a result

of an illegal search in violation of his Fourth Amendment

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rights; Teran argues that the admission of Benitez’s statement

in which his name was redacted violated his Sixth Amendment

Confrontation Clause rights; Appellants both argue the

government violated their Due Process rights by not

investigating the owner of the cellphone number from which text

messages were entered into evidence; and Teran argues his un-

Mirandized statement that he is a member of MS-13 was taken in

violation of his Fifth Amendment rights.

We review the district court’s factual findings for clear

error and legal conclusions de novo. United States v.

Vankesteren, 553 F.3d 286, 288 (4th Cir. 2009). Applying this

standard of review, we find Appellants’ arguments unavailing.

A.

Benitez argues that the search of the car in which he was a

passenger violated his Fourth Amendment rights, and therefore

the gun discovered therefrom should have been suppressed.

We have repeatedly held that if an officer smells marijuana

upon a lawful traffic stop he has probable cause to search both

the suspect and the passenger area of the car. See United

States v. Carter, 300 F.3d 415, 422 (4th Cir. 2002); United

States v. Haley, 669 F.2d 201, 203 (4th Cir. 1982). Appellants

do not dispute the legality of the traffic stop. Once Officer

Vogelpohl smelled marijuana, therefore, he had probable cause to

search both Benitez’s person and the passenger-area of the

8
vehicle for contraband. Thus, the search of Benitez and the car

and the subsequent discovery of the gun were lawful.

B.

Teran contends that the district court violated his Sixth

Amendment Confrontation Clause rights by admitting a sanitized

version of Benitez’s statement in which his name was replaced

with “the other person.”

Our precedent is unambiguous in that statements redacting a

co-defendant’s name are constitutionally permissible. See

United States v. Lighty, 616 F.3d 321, 350 (4th Cir. 2010);

United States v. Akinkoye, 185 F.3d 192, 198 (4th Cir. 1999);

United States v. Vogt, 910 F.2d 1184, 1191-92 (4th Cir. 1990).

Even if one can read the redacted statement in light of other

evidence as implicating a defendant, this does not violate the

Confrontation Clause. See United States v. Glisson, 460 F.

App’x 259, 263 (4th Cir. 2012) (per curiam). Teran’s Sixth

Amendment rights were not violated by the admission of Benitez’s

statement.

C.

Appellants allege the government violated its

constitutional duty as articulated in Brady v. Maryland, 373

U.S. 83 (1963), when it did not employ all available

investigative techniques to discover the owner of a cellphone

number from which text messages were entered into evidence.

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 The Supreme Court has held there is no Due Process

violation simply because “the police fail to use a particular

investigatory tool,” as the “police do not have a constitutional

duty to perform any particular tests.” Arizona v. Youngblood,

488 U.S. 51, 58-59 (1988). Furthermore, we have held that Brady

does not apply to evidence that is “available to the defendant

from other sources.” United States v. Bros. Constr. Co. of

Ohio, 219 F.3d 300, 316 (4th Cir. 2000) (quoting United States

v. Wilson, 901 F.2d 378, 380 (4th Cir. 1990)). The text

messages in question were disclosed to Appellants and Appellants

were then able to subpoena the phone records. Because

Appellants were able to employ their own investigatory

techniques to determine the owner of the cellphone number, no

constitutional violation occurred.

D.

Teran also claims the un-Mirandized statement he made to

law enforcement that he is a member of MS-13 was a result of

custodial interrogation in violation of his Fifth Amendment

rights, and therefore should have been suppressed. Whether

Teran was subject to custodial interrogation raises two

questions of first impression in this Circuit not fully briefed

by either party. One, whether the rule announced in Howes v.

Fields, 132 S.Ct. 1181 (2012), that inmates are not in constant

custody for Miranda purposes applies to pre-conviction

10
detainees. See also United States v. Conley, 779 F.2d 970 (4th

Cir. 1985); United States v. Cooper, 800 F.2d 412 (4th Cir.

1986). And two, whether routine booking questions that also

incriminate the defendant fall under the ‘booking question’

exception to Miranda. See United States v. D’Anjou, 16 F.3d

604, 608-09 (4th Cir. 1994). We do not reach these questions,

however, as Teran’s statement was admissible under the

independent source doctrine.

It is well established that the “independent source

doctrine allows admission of evidence that has been discovered

by means wholly independent of any constitutional violation.”

Nix v. Williams, 467 U.S. 431, 443 (1984). While normally

applied in the Fourth Amendment context, the independent source

doctrine applies in equal force to Fifth Amendment violations.

See id. at 442 n.3; Murphy v. Waterfront Comm’n of New York

Harbor, 378 U.S. 52, 79 (1964); Kastigar v. United States, 406

U.S. 441, 460-61 (1972); see also United States v. Patane, 542

U.S. 630, 639 (2004) (“[T]he Miranda rule does not require that

the statements [taken without complying with the rule] . . . be

discarded as inherently tainted.” (internal quotation marks and

citation omitted)).

Here, Teran’s gang affiliation was clearly available from

other sources. Sandoval testified that Teran was a member of

MS-13. Beyond this, Teran willfully admitted to his cellmate

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that he was a member of the gang. “The independent source

doctrine permits the introduction of evidence initially

discovered during, or as a result of, illegal government

conduct, but later obtained independently, from lawful

activities untainted by the initial illegality.” United States

v. Rodriquez-Morales, 972 F.2d 343, 1992 WL 175969, at *3 (4th

Cir. 1992) (unpublished per curiam) (citing Murray v. United

States, 487 U.S. 533 (1988)). Because evidence of Teran’s gang

membership was available from multiple independent sources, the

district court did not err in admitting Teran’s own statement,

even assuming it was taken in violation of his Fifth Amendment

rights.

III.

Appellants next challenge the district court’s admission of

several pieces of evidence. We review a district court’s

evidentiary rulings for abuse of discretion. United States v.

Johnson, 617 F.3d 286, 292 (4th Cir. 2010). Because we find no

abuse of discretion here, Appellants’ arguments can be

dispatched of summarily.

A.

Appellants assert that the district court erred in

admitting evidence of threatening text messages received by

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Sandoval. They argue that the messages were irrelevant,

unauthenticated, and highly prejudicial.

The messages in question were undoubtedly relevant. Law

enforcement intercepted a letter from Teran stating he was

trying to prevent Sandoval from testifying at trial. It is

reasonable to infer that threatening text messages sent to

Sandoval in close proximity to the interception of this letter

were related. Likewise, the messages were properly

authenticated, as authentication only requires a jury to make a

“factual determination of whether the evidence is that which the

proponent claims.” United States v. Vidacak, 553 F.3d 344, 349

(4th Cir. 2009) (internal quotation marks omitted). Sandoval

testified as to the personal nature of the messages, including

the threats to his family and how they aligned with Teran’s

knowledge of his family. A reasonable juror could infer that

the text messages were sent by Teran (or an associate), as

authentication only requires proof “sufficient to support a

finding that the item is what the proponent claims it is.” Fed.

R. Evid. 901(a). Finally, the text messages were highly

probative, as they corroborated the letters sent by Teran. The

district court did not abuse its discretion by admitting the

text messages.

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 B.

Appellants also maintain that evidence of their membership

in MS-13 was inadmissible as it is irrelevant and highly

prejudicial.

As the crime in question was a murder-for-hire, Appellants’

gang membership gave rise to the motive for the killing and

formed the basis for their relationship. As our sister Circuit

wisely explained, admission of gang-related evidence is

appropriate “to demonstrate the existence of a joint venture or

conspiracy and a relationship among its members.” See United

States v. King, 627 F.3d 641, 649 (7th Cir. 2010) (internal

quotation marks omitted). Furthermore, the district court

limited gang testimony to issues relevant to the case, ensuring

that the evidence of gang membership was no more sensational

than the crime in question. See United States v. Boyd, 53 F.3d

631, 637 (4th Cir. 1995) (“[T]he balancing test undeniably

weighs in favor of admitting the evidence, because the evidence

. . . did not involve conduct any more sensational or disturbing

than the crimes with which he was charged.”). Evidence of

Appellants’ gang membership was properly admitted.

Appellants’ argument that the gang expert’s testimony was

prejudicial is also fruitless. The district court reviewed and

sanitized the expert testimony outside the presence of the jury.

The district court then made a cautious assessment that the

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expert testimony would be useful in clarifying events for the

jury, corroborating witness statements, and identifying

Appellants’ gang tattoos.

In short, the district court made a deliberate, well-

reasoned determination as to the relevance of both Appellants’

gang membership and the use of expert testimony. We do not find

this to be clear error. *

IV.

Finally, Teran makes a last-ditch attempt for reprieve,

arguing he should have been acquitted of his firearms

convictions under 18 U.S.C. § 924(c) (use of a firearm in

*
Appellants also take issue with the admission of Bureau of
Alcohol, Tobacco and Firearms (ATF) documents, Teran’s prior gun
charge, and Teran’s wife’s translated prior inconsistent
statement. These arguments hold no water. The ATF forms are
admissible business records under Federal Rule of Evidence
803(6). Federal regulation requires firearm dealers to fill out
a Form 4473 for every firearm transaction, and then submit the
forms to the Bureau of Alcohol, Tobacco, Firearms and Explosives
(ATF). See 27 C.F.R. §§ 478.124, 478.127. Teran’s prior
firearms conviction is admissible under the “intent” exception
to bad character evidence. See Fed R. Evid. 404(b). Because
Teran pled not-guilty to possession of a firearm, any past
firearm conviction was relevant as to his intent. See United
States v. Brown, 398 F. App’x 915, 917 (4th Cir. 2010) (per
curiam). And just because Teran’s wife’s statement needed to be
translated does not render the statement inadmissible, as we
have stated that, “except in unusual circumstances an
interpreter is no more than a language conduit and therefore his
translation do[es] not create an additional level of hearsay.”
Vidacak, 553 F.3d at 352 (internal quotation marks and citation
omitted). There is nothing in the record that indicates the
interpreter was anything more than a conduit.

15
relation to a crime of violence or drug trafficking offense) and

18 U.S.C. § 922(g)(5)(A) (illegal alien in possession of a

firearm). Teran contends there was insufficient evidence for a

jury to conclude he actually possessed the murder weapon.

When reviewing a district court’s denial of a motion for

judgment of acquittal based upon insufficiency of the evidence,

“[w]e must determine whether there is substantial evidence to

support the jury’s verdict, viewing the evidence in the light

most favorable to the government.” United States v. Masiarczyk,

1 Fed. App’x 199, 203 (4th Cir. 2001) (citing United States v.

Sutton, 961 F.2d 476, 478 (4th Cir. 1992)). The record at hand

contains more than enough evidence to sustain Teran’s firearms

convictions, rendering his argument feckless.

A.

While the government may not have eyewitness testimony

placing the gun in Teran’s hands, there is certainly enough

evidence for a reasonable person to make that inferential leap.

Sandoval testified that he overheard Teran agreeing to provide

the gun. Further, a jury could infer Teran had constructive

possession of the gun, as he coordinated the murder-for-hire

scheme. Finally, the jury could have found Teran guilty under

the Pinkerton co-conspirator liability theory; because Benitez

is guilty of the crime, so is Teran. See United States v.

Chorman, 910 F.2d 102, 110-11 (4th Cir. 1990) (“Federal courts

16
consistently have followed Pinkerton in affirming convictions

for substantive offenses committed in the course of and in

furtherance of a conspiracy, based on the defendant’s knowledge

of and participation in that conspiracy.”); Pinkerton v. United

States, 328 U.S. 640 (1946). A defendant can be found guilty of

an offense “reasonably foreseeable as a necessary or natural

consequence of the conspiratorial agreement.” United States v.

Aramony, 88 F.3d 1369, 1380 (4th Cir. 1996) (internal quotation

marks omitted). It is undoubtedly foreseeable that Teran can be

found guilty under Pinkerton liability theory for possession of

a firearm, as the gun was the very object used to perpetrate the

conspiracy in question. There is enough evidence to support

Teran’s firearms convictions under multiple theories, thus the

district court did not err in denying Teran’s motion of

acquittal.

V.

Ultimately, this Court will only overturn a jury verdict in

the rarest of circumstance. “We will not [] disturb a jury

verdict ‘unless, without weighing the evidence or assessing

witness credibility, we conclude that reasonable people could

have returned a verdict’ only for the moving party.” Randall v.

Prince George’s County, Md., 302 F.3d 188, 201 (4th Cir. 2002)

(citing Cooper v. Dyke, 814 F.2d 941, 944 (4th Cir. 1987)).

17
Even assuming Appellants’ assertions of error are true, there is

still overwhelming evidence on the record to support the jury’s

verdict, rendering any error made by the district court

harmless.

VI.

For the foregoing reasons, we affirm Appellants’

convictions on all seven counts.

AFFIRMED

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