U.S. v. Martinez

• Decision Date: 06 October 1992
• Docket Number: No. 91-7212,91-7212
• Citation: 975 F.2d 159
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Luis MARTINEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 159

975 F.2d 159

UNITED STATES of America, Plaintiff-Appellee, v. Luis MARTINEZ, Defendant-Appellant.

No. 91-7212.

United States Court of Appeals, Fifth Circuit.

Oct. 6, 1992.

William Carl Miller, Biloxi, Miss. (court appointed), for defendant-appellant.

Richard T. Starrett, Asst. U.S. Atty. and George Phillips, U.S. Atty., Jackson, Miss., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

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 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 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, 62 S.Ct. 457, 469, 86 L.Ed. 680 (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 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....