U.S. v. Martinez

Decision Date24 June 1985
Docket NumberNos. 83-5458,SUAREZ-O,83-5630,s. 83-5458
Citation763 F.2d 1297
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Buenaventura MARTINEZ, Juan Martinez, Jaime B. Salcedo, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellant, v. Manuel'NEILL, Defendant-Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit

Jorge A. Sibila, Miami, Fla., for B. Martinez.

Luis Cruz, Miami, Fla., for J. Martinez.

Blas E. Padrino, Coral Gables, Fla., for J.B. Salcedo.

Stanley Marcus, U.S. Atty., Linda Collins Hertz, Robert J. Bondi, Asst. U.S. Attys., Miami, Fla., for the United States.

Thomas F. Almon, Jr., Miami, Fla., for Suarez-O'Neill.

Appeals from the United States District Court for the Southern District of Florida.

Before HILL, KRAVITCH and SMITH, * Circuit Judges.

JAMES C. HILL, Circuit Judge:

Following a jury trial before the United States District Court for the Southern District of Florida, appellants Buenaventura Martinez, Juan Martinez, Jaime B. Salcedo, and codefendant/appellee Manuel Suarez-O'Neill were convicted of conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. Sec. 846, possession with intent to distribute cocaine in violation of 21 U.S.C. Secs. 841(a)(1) and 18 U.S.C. Sec. 2, and importation of cocaine into the United States in violation of 21 U.S.C. Secs. 952(a) and 960(a)(1) and 18 U.S.C. Sec. 2. 1 The district court subsequently granted Suarez-O'Neill's motion for a new trial. Following submission of the case against Suarez-O'Neill to the judge, on the basis of the same evidence previously presented to the jury, 2 the district court entered a judgment of acquittal.

Appellants Buenaventura and Juan Martinez and Jaime Salcedo appeal their convictions. We reject their arguments and affirm the jury verdicts against them. The United States appeals the district court's judgment acquitting Suarez-O'Neill, claiming only that the motion for a new trial was erroneously granted. We hold that we have jurisdiction over the government's appeal and that the court erred when it granted the motion. We reverse the judgment of acquittal and reenter the original jury verdict of guilt.

I. APPELLANTS BUENAVENTURA AND JUAN MARTINEZ, AND SALCEDO:

APPEAL OF CONVICTIONS

Appellants Buenaventura and Juan Martinez, and Salcedo challenge the sufficiency of the evidence, the district court's refusal to give a jury instruction on identification, and the district court's refusal to permit the jury to view the vessel. We reject these challenges. 3

A. Facts

On December 2, 1982, the M/V MAR AZUL arrived at Miami, Florida from San Andreas, Colombia, and docked on the Miami River at the Riverway Terminal. Beginning that evening, United States Customs Officers established a covert surveillance of the MAR AZUL and Riverway Terminal area from the roof of a nearby building.

At 8:00 p.m. the next evening, officers saw Juan Martinez and Vladimiro Mihalache Molarro ("Mihalache"), a codefendant not party to this appeal, 4 arrive in a Camaro Z 28, which they parked near the entry gate to the Riverway Terminal. Juan Martinez and Mihalache then spoke with the security guard at the Riverway Terminal, Buenaventura Martinez. No significant activity occurred between 8:00 p.m. and 11:00 p.m. The front gate of the Riverway Terminal remained closed and was not even opened when a van, loaded with carpet materials for the MAR AZUL, arrived to deliver them.

At 11:00 p.m., Buenaventura Martinez opened the front gate of the terminal, got into an Oldsmobile Cutlass parked outside, and drove it onto the dock area of the terminal. Juan Martinez and Mihalache then closed the front gate.

A few minutes later, the light, which had been illuminating the MAR AZUL, was shut off. A Customs Officer then saw Jaime Brawn Salcedo, a crewmember of the MAR AZUL, and two others on the aft deck area of the MAR AZUL. Mihalache and Juan Martinez were positioned on the dock at the bottom of the gangway to the MAR AZUL. Salcedo threw or slid two blue containers down the gangway. Mihalache and Juan Martinez took the containers. Buenaventura Martinez reopened the front gate and the white Oldsmobile, driven by Juan Martinez, with Mihalache as a passenger, exited the terminal. The security guard then closed the gate. Custom officials stopped the Oldsmobile, finding two blue containers filled with cocaine in the trunk.

Following the cocaine seizure, law enforcement officials proceeded into the Riverway Terminal area, where they arrested Suarez-O'Neill, captain of the MAR AZUL. Subsequent inspection of the vessel revealed 484 lbs. of cocaine hidden on board.

B. Sufficiency of the Evidence

Appellants challenge the sufficiency of the evidence to sustain their convictions. In reviewing sufficiency of evidence claims, "we must examine the record in the light most favorable to the government, and in that light determine if a reasonable juror could find the defendants guilty beyond a reasonable doubt." United States v. Corbin, 734 F.2d 643, 650 (11th Cir.1984). "It is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, provided a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt. A jury is free to choose among reasonable constructions of the evidence." United States v. Bell, 678 F.2d 547, 549 (5th Cir. Unit B 1982) (en banc), aff'd on other grounds, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983).

1. Possession with intent to distribute and conspiracy to

possess.

Focusing exclusively on their own testimony that they did not know cocaine was inside the containers or that criminal activity was in progress, appellants maintain the evidence was insufficient to establish that they had the criminal intent necessary to be convicted of possession or conspiracy to possess. 5 However, other evidence presented established appellants' participation in a carefully orchestrated and timed off-loading operation, revealing conduct by appellants that belies their protestations of innocent intent and lack of knowledge. Buenaventura Martinez, the security guard, refused to open the gate for a truck that arrived earlier in the evening to deliver rugs for the boat, but willingly opened the gate at 11:00 p.m. when he drove a car from outside the gate into the dock area. Once he parked the car in the dock area, containers filled with cocaine were put into its trunk. Buenaventura Martinez then reopened the gate to let the car, now loaded with cocaine, drive out.

Salcedo, a crewmember for the MAR AZUL, and Juan Martinez, brother of Buenaventura, were seen at the MAR AZUL at 11:00 p.m. taking the containers from the ship into the car. These activities, along with the facts that the activity began at 11:00 p.m. and that the lights illuminating the MAR AZUL suddenly were turned off as this off-loading operation began, indicate that appellants had knowledge of the drug conspiracy and, armed with such knowledge, acted in a manner that unmistakenly forwarded that conspiracy. Such evidence is amply sufficient to sustain convictions for possession and conspiracy to possess. United States v. Lopez-Llerena, 721 F.2d 311 (11th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 1602, 1913, 80 L.Ed.2d 132 (1984).

2. Importation

Appellant Juan Martinez argues the evidence was insufficient to sustain his conviction for importation because the evidence "does not exclude the possibility that the contraband was not brought into the United States from outside its territory." Brief of Appellant Juan Martinez at 9. However, the standard of review is not whether the evidence excludes every reasonable hypothesis of innocence, as appellant suggests, but rather whether, viewing the evidence in the light most favorable to the government, a reasonable person could find beyond a reasonable doubt that cocaine was brought into the United States from outside its borders. Bell, 678 F.2d at 549. We hold a reasonable person could so find. The evidence established that the MAR AZUL left Colombia destined for Miami. No indication was given that the ship stopped anywhere else in the United States prior to reaching the Riverway Terminal in Miami. It would thus be reasonable to conclude that the Riverway Terminal was the MAR AZUL's first and only stop in the United States. No indication was given that the MAR AZUL had contact with any ships, other than those of the Coast Guard, once it entered United States territory. Further, the vessel was under surveillance both the evening of its arrival in Miami and the following evening, which was when the off-loading activity occurred. The surveillants saw no loading activity. It would be reasonable to assume that no one would attempt to load 484 lbs. of cocaine in broad daylight, or would place so much cocaine on board the MAR AZUL while docked in Miami only to remove it a short time later. In the absence of any evidence indicating the MAR AZUL stopped in the United States prior to arriving at the Riverway Terminal, it was reasonable for the jury to conclude that the cocaine was brought into the United States from outside its borders.

Appellant Juan Martinez also argues that the evidence was insufficient because it showed, at most, that any involvement he may have had in the cocaine operation took place after the cocaine was already in the United States and thus after the importation had occurred. However, the crime of importation is not over the moment the controlled substance enters the United States. Importation is a " 'continuous crime' that is not complete until the controlled substance reaches its final destination point." Corbin, 734 F.2d at 652; United States v. Gray, 626 F.2d 494, 498 (5th Cir.1980), cert. denied, 449 U.S. 1091, 101 S.Ct. 887, 66 L.Ed.2d 820 (1981). For this reason, it has been held, in circumstances that for all relevant purposes are identical to those here, that...

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