U.S. v. Martinez, s. 89-2044

Citation922 F.2d 914
Decision Date05 October 1990
Docket Number89-2045 and 89-2095,Nos. 89-2044,s. 89-2044
PartiesUNITED STATES of America, Appellee, v. Victor MARTINEZ, Defendant, Appellant. UNITED STATES of America, Appellee, v. Hector VIDAL, Defendant, Appellant. UNITED STATES of America, Appellant, v. Victor MARTINEZ, Defendant, Appellee. . Heard
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Edward J. Romano, with whom John F. Cicilline, Providence, R.I., by appointment of the Court, was on brief, for defendant-appellant Victor Martinez.

Joel D. Landry, with whom Connors & Kilguss, Providence, R.I., was on brief for defendant-appellant Hector Vidal.

Edwin J. Gale, Asst. U.S. Atty., with whom Lincoln C. Almond, U.S. Atty., Providence, R.I., was on brief for appellee, U.S.

Before TORRUELLA, Circuit Judge, TIMBERS, * Senior Circuit Judge, and CYR, Circuit Judge.

TORRUELLA, Circuit Judge.

These consolidated appeals stem from the conviction of appellants, Victor Martinez and Hector Vidal, for possessing and conspiring to possess with intent to distribute a Schedule I controlled substance in violation of 21 U.S.C. Secs. 841 and 846. A federal grand jury for the District of Rhode Island indicted appellants together with co-defendants Freddy Fabian, Miguel Cabrero, and Nelson Velez-Ortiz, but the cases of the latter two were disposed of by way of pleas and the case of the former was not appealed. Guilty verdicts in the other cases followed six days of testimony, and appeals from Martinez, Vidal, and the government followed the convictions. Finding no merit in any of appellants' contentions, we affirm.

I. BACKGROUND

Six days of trial produced an inordinate amount of evidence which, for organization purposes, we will recount in the order in which it was presented before the district court.

A. The Government's case in chief

In the Spring of 1989 officers from the Special Investigations Bureau of the Providence Police Department conducted an investigation into a suspected heroin trafficking ring which allegedly operated from the second-floor apartment of a tenement located in that city. On May 2, 1989, anticipating the execution of a warrant later that day, an agent by the name of Detective Beraducci arrived at the site at approximately 1:00 p.m. for the purpose of conducting a surveillance of the premises. The warrant was being procured by another agent, Detective Francisco Colon, on the basis of information supplied by a confidential informant who had allegedly visited the location on several occasions before that day, and had witnessed drug transactions taking place.

Detective Beraducci observed a total of four suspects in or about the premises during the course of his surveillance. Shortly after taking up his position, he witnessed a car drive up to the site. He saw the driver exit the car, walk to the front of the tenement and throw a pebble at the window of the second-floor apartment. Someone came to the window, and shortly thereafter, the driver was allowed inside the premises. After a few minutes, this individual came out of the building and returned to the car, where he appeared to be working on the inside panel of the passenger side of the automobile. That done, the car drove off. Beraducci related his observations by means of a hand-held radio to other police officers in the area as well as to Detective Colon, who was able to receive those communications while at Police Headquarters.

A few minutes later, Beraducci observed a man, subsequently identified as co-defendant Hector Vidal, exit the premises carrying a cardboard box in his hands. He also drove away, but only to return twenty minutes later, this time carrying what appeared to be a styrofoam container of take-out food. Beraducci then saw Vidal re-enter the building.

Still stationed in his covert position a few feet away from the tenement, Beraducci next observed a male subject drive up to the site and enter through the left front door to the building. He exited a few minutes later, noticeably carrying something in the pockets of his pants. Suspecting that the individual had just obtained heroin from the apartment under surveillance, Beraducci radioed other officers in the vicinity to stop the suspect once he had driven away. Officers Gannon and Correia received Beraducci's radio request and subsequently arrested the man after a short chase. This individual, later identified as co-defendant Miguel Cabrero, a/k/a Marco Garcia, was found to have been in possession of four packages of heroin marked with a stamp bearing the word "Demolicion."'

At approximately 3:25 p.m., Beraducci observed a third man arrive at the site. This individual was known to Beraducci as Josh Morillo, a previous narcotics subject. He saw Morillo enter the building and exit two or three minutes later, then drive away out of Beraducci's sight. Despite Beraducci's radio calls to stop Morillo, no one was in a position to make the stop.

By 3:45 p.m. Detective Colon had obtained a search warrant authorizing a search of the second-floor apartment and he arrived at the premises with several other officers shortly thereafter. Forcible entry was required, as no one responded to the officers' announcement of their purpose and identities. As the front door was finally opened, the sound of breaking glass could be heard from the rear of the apartment. The officers rushed inside in an attempt to locate and arrest any occupants. Proceeding from the living room through a dining area which was strewn with a considerable amount of narcotics packaging paraphernalia in open view, they found two adult males, later identified as co-defendants Victor Martinez and Nelson Velez-Ortiz, seated on a bed in a back room off the kitchen. Martinez and Velez-Ortiz were arrested and brought to the front room where Detective Colon retrieved a ring of keys from Martinez' person, one of which was found to open the front door to the apartment.

While the officers accompanying Colon were making these arrests, Officers DeAngelis and Beraducci had moved hastily to the back of the apartment to apprehend any suspects who might be attempting to flee. Having heard the sound of breaking glass which followed their entry, the officers had gone to the right rear corner of the apartment, whereupon as they looked up through the back window they saw a man, later identified as co-defendant Freddy Fabian, in mid-air, falling to the ground below. Fabian landed on his feet and began running immediately, a few steps behind Vidal, who had apparently utilized the same means to exit the apartment. The officers gave chase, all the while identifying themselves as police officers and ordering the suspects to stop, all to no avail. The suspects were finally apprehended and brought back to the apartment.

The balance of the evidence presented by the government established that the suspects who had allegedly jumped through the second-floor window displayed leg casts two days after their arrests, and that a rubber stamp bearing the name "Demolicion," and a styrofoam food container like that observed being carried into the premises by Vidal some two hours before the raid, were seized from the apartment.

B. Defendant Martinez' trial testimony

At trial, Martinez took the stand in his own defense. At the time of the subject offense, he claimed to have been earning a living as a taxi driver in New York. With regard to the events of May of 1989, Martinez testified that on the night of May 1 he ran into a friend by the name of Manuel Esposito at a social club in the Bronx. Esposito told him that he was going to drive to Providence later that night and invited him to come along. Martinez agreed and, without making any further preparations, departed immediately with his friend. After arriving in Providence about an hour after midnight, the two men allegedly spent the night at the house of Esposito's girlfriend. At approximately 10:00 a.m. the morning of May 2, they went for a drive around the city of Providence and eventually stopped at a restaurant just about an hour or two past noon. The stay at the restaurant lasted for about half an hour and then a short drive took them to the place of the arrests, where they arrived at or about 3:00 p.m. that afternoon. At that point Esposito told Martinez to wait in the car while he went inside the building, then came out a few minutes later accompanied by an unidentified man. The duo approached Martinez and directed him to get out of the car and wait for them there while they ran some errands. While Martinez waited for their return it began to drizzle and a man, subsequently identified as co-defendant Velez-Ortiz, opened the upstairs window and invited Martinez to come into the apartment.

Once inside the building Martinez allegedly went to the second floor, sat on a sofa, and talked to Velez-Ortiz, a total stranger, for about thirty minutes. He claimed that he heard no one else in the premises and that he could not see into the other rooms because folding doors closed off the remainder of the apartment. Then, all of a sudden, the police were in the building, and Velez-Ortiz told Martinez to run because there was trouble. Martinez moved swiftly to the rear of the apartment and went into the bedroom where he was subsequently arrested.

The remainder of Martinez' testimony consisted of a series of denials of facts material to the government's case. He claimed never to have seen Fabian or Vidal before trial, never to have noticed the broken windows in the apartment, and never to have observed the narcotics paraphernalia in the dining room area through which he admits he passed on the way to the rear bedroom. Additionally he testified that the keys seized by the officers did not come from his person and did not even belong to him. Martinez likewise claimed not to have heard from his friend Esposito since seeing him drive off at about 3:00 p.m. on May 2, 1989 and never to have been in Providence prior to that day.

C. The...

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