U.S. v. Martinez

• Decision Date: 18 August 1998
• Docket Number: No. 97-10277,97-10277
• Citation: 151 F.3d 384
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Christopher MARTINEZ, Raul Orozco, Candelario Martinez, Raul Martinez, aka Roy Reyes Martinez, Ramon Peralez Gomez, aka Ray Gomez, Christopher Boatright, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 384

151 F.3d 384

UNITED STATES of America, Plaintiff-Appellee, v. Christopher MARTINEZ, Raul Orozco, Candelario Martinez, Raul

Martinez, aka Roy Reyes Martinez, Ramon Peralez

Gomez, aka Ray Gomez, Christopher

Boatright, Defendants-Appellants.

No. 97-10277.

United States Court of Appeals, Fifth Circuit.

Aug. 18, 1998.

Richard A. Friedman, U.S. Dept. of Justice, Washington, DC, Delonia Anita Watson, U.S. Atty's Office, Dallas, TX, for Plaintiff-Appellee.

Sam L. Ogan, Federal Public Defender's Office, Amarillo, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Texas.

Before KING, SMITH and STEWART, Circuit Judges.

STEWART, Circuit Judge:

This appeal arises from an alleged conspiracy to distribute marijuana and cocaine in Texas and several other states. On appeal from their convictions and sentences, defendants-appellants argue that (1) the evidence was insufficient to convict certain defendants; (2) the district court abused its discretion in controlling the scope of defense counsels' cross-examination of government witnesses; (3) the prosecution failed to disclose impeachment information concerning government witnesses in a timely fashion; (4) the district court abused its discretion in permitting a Drug Enforcement Administration agent's testimony regarding the chain of custody of seized drugs; (5) the prosecution improperly commented on the defendants' decision not to testify; (6) certain defendants received ineffective assistance of counsel; (7) the district court erred in its instructions to the jury; and (9) the district court incorrectly sentenced certain defendants. For the reasons assigned, we AFFIRM the decision of the district court.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

This case arises from an alleged conspiracy to distribute marijuana and cocaine. The government contends that Christopher Martinez ("Christopher") obtained bulk quantities of marijuana and cocaine on consignment from appellants Ramon Peralez Gomez and Raul Orozco. Christopher supposedly distributed the marijuana and cocaine to appellants Candelario Martinez, Raul Martinez, and Christopher Boatright, among other individuals, for further distribution in Texas, Oklahoma, Virginia, and elsewhere. The drugs and money derived from these sales and distributions were stored at the residences of Christopher and Boatright. Christopher allegedly used the income from his drug distribution enterprise to pay Gomez and Orozco for the drugs that they supplied.

The government established its case against the appellants through the cooperation of several government witnesses, but mainly through that of Stewart Porter--a private pilot who was previously involved in drug dealing with Christopher. Porter agreed to cooperate after police told him he would not be prosecuted for his own drug activities if he cooperated in the investigation of Christopher.

Porter provided considerable evidence about the drug trafficking activities of Christopher and the other appellants. Much of his knowledge stemmed from the fact that he piloted Christopher on several trips and also piloted flights to deliver drugs and money at Christopher and the other appellants' direction. On several such flights, Porter witnessed Christopher make deals with certain individuals to distribute his cocaine in periodic shipments. On one trip, Christopher met with Orozco and the two appellants agreed that Orozco would provide drugs on consignment and that Porter would fly the payments for the drugs to Orozco. After the deal was struck, Porter made numerous flights to deliver the payments from Martinez to Orozco.

These payments ranged from $30,000 to $180,000.

On April 20, 1995, Christopher gave $226,000 to Elgin Allen (aka Allen Hammer), a Dallas disc jockey, to purchase 15 kilograms of cocaine in Dallas. It so happened that Allen made such purchase from undercover police officers. Allen was arrested as a result of the purchase. After Allen was released on bail, Christopher provided him money for attorney's fees. After Allen's conviction and sentencing, he testified for the government at the appellants' trial.

In addition to the government's use of the aforementioned "informants" to expose the drug trafficking ring, Christopher was tape-recorded discussing his drug business--mentioning 400 and 600 "keys" (kilograms of drugs), and noting that 400 kilograms was worth $4 million. On August 1, 1995, Porter and Boatright had a tape-recorded conversation about drug trafficking.

Porter provided agents with information which led to the October 3, 1995 discovery of 90 pounds of marijuana during a warrant search of the residence of Candelario Martinez (Christopher's brother-in-law) and Raul Martinez (Christopher's brother). Orozco allegedly was the source of the marijuana. During the search, officers seized drug paraphernalia, an accounting book for drug transactions, and two receipts from Christopher for $3,000 each.

A November 16, 1995 search of Christopher's residence pursuant to a warrant resulted in the discovery of $514,711 in cash drug proceeds as well as drug paraphernalia, drug trafficking records, and a small amount of marijuana. Porter verified that prior to the search he had seen Christopher wrap the cash proceeds in bundles of $10,000 and that the two had discussed the anticipated returns from drug distribution transactions with Gomez. Following the search, Christopher told Porter that just prior to the search, he had become concerned that his house was under surveillance and had directed one of his "employees" to remove from the property a vehicle containing ten kilograms of cocaine. A set of drug notes seized during the search referred to five kilograms of cocaine for the price of $16,500 each (presumably $16,500 per kilogram).

On February 27, 1996, appellants Christopher, Candelario Martinez, Raul Martinez, Boatright and two others attempted to burn a residence in Arlington, Texas that was owned by a person who had not paid money he owed to Christopher for a consignment of ten kilograms of cocaine. Members of this group made "Molotov cocktails" from Coke bottles, gasoline, and rags in furtherance of their plan.

On June 18, 1996, an indictment was returned charging all six appellants (and three other codefendants) with conspiracy to distribute cocaine and marijuana, in violation of 21 U.S.C. § 846; charging appellants Christopher (three counts) and Orozco (one count) with money laundering, in violation of 18 U.S.C. § 1956(a); and seeking criminal forfeiture against Christopher and Orozco (and one other codefendant), under 21 U.S.C. § 853. On June 25, 1996, five of the six appellants (all except Orozco) were arrested. On September 3, 1996, Orozco was stopped for a traffic violation. The officers discovered that there was an outstanding federal warrant for Orozco for drug distribution and arrested him.

After a five-day jury trial, all appellants were convicted on all of the aforementioned counts. ¹ The district court sentenced Christopher to life imprisonment and criminal forfeiture of $770,711; Orozco to 168 months imprisonment, criminal forfeiture of $19,900 and a fine of $25,000; Candelario Martinez to 235 months imprisonment; Raul Martinez to 262 months imprisonment and a fine of $25,000; Gomez to 262 months imprisonment; and Boatright to 168 months imprisonment. These appeals followed.

DISCUSSION

I

The first issue that appellants raise in their briefs is whether there was sufficient Appellant Orozco contends that there was insufficient evidence to prove his membership in the drug trafficking conspiracy. The record reveals that Porter's testimony at trial established that 1) Orozco entered into an agreement with Christopher to supply Christopher with cocaine on consignment for further distribution and 2) Porter made no fewer than nine flights to deliver approximately $700,000 in cash payments for cocaine to Orozco. We find that such evidence is sufficient to prove membership in a drug conspiracy. Moreover, as the government urges, Porter's testimony was corroborated by entries in his flight log and his credibility was also supported by tape recordings and surveillance.

evidence to prove the drug trafficking conspiracy charge against Orozco and the money laundering charges against Orozco and Martinez. Review for sufficiency of the evidence is decidedly narrow--a conviction must be affirmed if a rational trier of fact could have found that the evidence established the essential elements of guilt beyond a reasonable doubt. United States v. Mmahat, 106 F.3d 89, 97 (5th Cir.1997). The evidence is viewed in the light most favorable to the verdict and this court indulges all reasonable inferences in favor of the verdict. Id. This circuit has noted that "[w]hen reviewing the sufficiency of the evidence to support a conviction, the facts and all reasonable inferences therefrom will be viewed in the light most favorable to the court's findings." United States v. Garcia, 917 F.2d 1370, 1376 (5th Cir.1990) (internal citations omitted).

The jury is entitled to believe a witness unless the testimony is so incredible that it defies physical laws. United States v. Lerma, 657 F.2d 786, 789 (5th Cir.1981), cert. denied, 455 U.S. 921, 102 S.Ct. 1279, 71 L.Ed.2d 463 (1982). Further, the evidence does not have to exclude every reasonable hypothesis of innocence. United States v. Leed, 981 F.2d 202, 205 (5th Cir.1993), cert. denied, 508 U.S. 975, 113 S.Ct. 2971, 125 L.Ed.2d 669 (1993). The jury's reasonable determination that Porter was a credible witness cannot be disturbed on appeal. United States v. Westbrook, 119 F.3d 1176, 1190 (5th Cir.1997) (asserting deference to jury assessment's of credibility). In United States v. Morgan, 117 F.3d 849, 854 n. 2 (5th Cir.1997), this court noted that "[c]redibility issues are for the finder of fact and do not undermine the sufficiency of the evidence." (Internal citations...