U.S. v. Martinez
| Decision Date | 13 July 1977 |
| Docket Number | No. 76-4445,76-4445 |
| Citation | 555 F.2d 1248 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Rogelio MARTINEZ, Richard Martinez, and Roger Martinez, Defendants-Appellants. Summary Calendar. * United States Court of Appeals, Fifth Circuit |
| Court | U.S. Court of Appeals — Fifth Circuit |
Ray Bass, III, Houston, Tex., for defendants-appellants.
Edward B. McDonough, Jr., U. S. Atty., Mary L. Sinderson, George A. Kelt, Jr., James R. Gough, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before GOLDBERG, CLARK and FAY, Circuit Judges.
Appellants are a father and two of his sons, who have been convicted by a jury of conspiring to possess heroin with the intent to distribute, and of conspiring to distribute heroin.
On appeal, they allege that (1) there was insufficient independent evidence of the existence of a conspiracy; (2) that the extrajudicial statements of one of the co-conspirators should not have been allowed in evidence; (3) that the trial venue was improper; (4) that the trial should have been continued because of the absence of a necessary witness; and (5) that a DEA agent testified about a telephone call between himself and someone a co-conspirator told him was one of the appellants.
However, after a review of the record in this case, we find that there was ample evidence of the existence of a conspiracy to possess and distribute heroin, and of the membership of these appellants in that conspiracy and their participation in the furtherance of its ends.
On two occasions the co-conspirators went to Houston to obtain heroin. On both occasions they went directly to the home of Rogelio Martinez, where they met with Rogelio and his sons, Richard and Roger. Following each meeting with the alleged buyers, the co-conspirators would either go to Rogelio's home or meet with Rogelio and his sons. No heroin transaction was completed in Houston only because Rogelio insisted that the deal be closed at his house and he broke off negotiations after he detected the surveillance of his home.
This Court must view the evidence presented by the government in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). Whether the evidence is direct or circumstantial, the question of the defendant's guilt is for the jury to decide unless the trial judge, viewing the evidence in the light most favorable to the government, concludes that the jury would necessarily have to have a reasonable doubt. United States v. Reynolds, 5 Cir. 1975, 511 F.2d 603; United States v. James, 5 Cir. 1975, 510 F.2d 546, cert. denied sub nom. Vasquez v. United States, 423 U.S. 855, 96 S.Ct. 105, 46 L.Ed.2d 81 (1975). All reasonable inferences and credibility choices must be made in favor of the jury verdict. United States v. Black, 5 Cir. 1974, 497 F.2d 1039, 1041. We have recently held that we must sustain a jury verdict where there is substantial evidence under the Glasser test to support that verdict, as there is here.
At trial, both government undercover agents testified to extrajudicial statements made by Hector Martinez during the term of this conspiracy which implicated the appellants. Such statements were crucial to the government's case, and the agents were subjected to extensive cross-examination. Such statements did not violate appellant's Sixth Amendment rights to confrontation. Park v. Huff, 5 Cir. 1975, 506 F.2d 849, cert. denied 423 U.S. 824, 96 S.Ct. 38, 46 L.Ed.2d 40 (1975).
Although appellants are from Houston, and several of the overt acts involving appellants occurred in Houston, this conspiracy was formed, and at least nine of the overt acts in this conspiracy occurred in Laredo; therefore, trial in the Laredo Division...
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