U.S. v. Martinez, 93-4076

• Decision Date: 20 May 1996
• Docket Number: No. 93-4076,93-4076
• Citation: 83 F.3d 371
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Hector MARTINEZ, Jorge Gomez, Humberto Gallo, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 371

83 F.3d 371

UNITED STATES of America, Plaintiff-Appellee, v. Hector MARTINEZ, Jorge Gomez, Humberto Gallo, Defendants-Appellants.

No. 93-4076.

United States Court of Appeals, Eleventh Circuit.

May 20, 1996.

William A. Meadows, Jr., Miami, FL, Thomas W. Risavy, South Miami, FL, Steven E. Kreisberg, Coconut Grove, FL, Richard C. Klugh, Asst. Federal Public Defender James R. Garley, Federal Public Defender, Ft. Lauderdale, FL, for appellant(s).

Kendall Coffey, U.S. Atty., Jeanne M. Mullenhoff, Asst. U.S. Atty., Miami, FL, for appellee.

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

Before EDMONDSON and BIRCH, Circuit Judges, and FOREMAN ^*, Senior District Judge.

EDMONDSON, Circuit Judge:

Humberto Gallo, Hector Martinez and Jorge Gomez appeal their convictions for conspiracy to possess, and possession of cocaine with the intent to distribute it, in violation of 21 U.S.C. §§ 846 and 841. Gallo and Gomez appeal also their convictions for using a firearm in the commission of a drug offense under 18 U.S.C. § 924(c). Gallo also appeals his sentence. We affirm in part and reverse in part.

In 1992, Luis Fernandez, an undercover narcotics detective with the Metro-Dade Police Department, received a phone call from Defendant Gallo. Gallo told Fernandez that he was interested in executing a "rip-off," that is, in stealing narcotics.

Days later, Fernandez and Luis Escobedo, a confidential informant ("CI"), met with Gallo. Escobedo played the role of a drug dealer, responsible for the security of 50 kilograms of cocaine, who was willing to leave the cocaine unguarded for Gallo to steal. Gallo was to receive 25 kilograms as payment for his role in stealing the cocaine. Gallo assured Fernandez that he was a professional who had executed rip-offs before and that he had men with guns ready to steal this 50 kilograms of cocaine. Fernandez and Gallo agreed that Gallo would steal the cocaine the next day.

The next day, Fernandez moved two suitcases, filled with five kilograms of real cocaine and 45 kilograms of sham cocaine, into the kitchen of an abandoned house. Then, away from the house, Fernandez and Gallo met again in a shopping center parking lot. At the meeting, Defendants Martinez and Gomez were present but in a separate vehicle. Defendants then followed Fernandez to a service station where Gallo told Martinez and Gomez to pretend they were using the phone while he talked to Fernandez. Gallo cautioned Fernandez to re-wrap his share of the cocaine, just in case Fernandez attempted to sell the cocaine to the dealers from whom they were stealing it.

Escobedo arrived and took Gallo to the house where the cocaine was stored. When Gallo was returned to the service station, Gomez got into Gallo's car. Escobedo left the scene. Defendants then went to the house: Gomez and Gallo drove in Gallo's car, and Martinez drove himself in his truck.

Defendants arrived at the house which was being watched by law enforcement agents. Gallo and Gomez held handguns as they approached the house. Defendants broke into the house using a crowbar, took the suitcases and began to leave. Then Defendants were told they were under arrest. Martinez and Gomez surrendered immediately. Gallo was captured after he ran across the yard and up a tree. Two weapons were retrieved at the scene: one was found on the floor of the house, the other outside in the yard.

All three Defendants were charged with conspiring to possess cocaine with the intent to distribute and with possession of cocaine with intent to distribute. Gomez and Gallo were also charged with using a firearm in the commission of a drug offense and with felon in possession of a firearm. Only Martinez testified at trial. Each Defendant was convicted of all the offenses with which he was charged.

Sufficiency of the Evidence

Claiming insufficient evidence, Gallo challenges his conspiracy conviction; Martinez challenges his conspiracy and substantive cocaine possession convictions; and Gomez challenges his conspiracy, cocaine possession, and use of a firearm during a drug offense convictions. Sufficiency of the evidence is a question of law reviewed de novo. See United States v. Harris, 20 F.3d 445, 452 (11th Cir.1994). We, however, view the evidence in the light most favorable to the government, with all reasonable inferences and credibility choices made in the government's favor. See United States v. Keller, 916 F.2d 628, 632 (11th Cir.1990).

Martinez and Gomez claim that they did not know they were going to steal cocaine; they say Gallo told them they were going to steal money. Therefore, Martinez and Gomez contend that they cannot be convicted of either the conspiracy or of possession charges because they did not know the suitcases contained cocaine. Gallo claims he cannot be convicted of conspiracy to possess cocaine because there was no agreement with others to steal cocaine, but only an agreement to steal money. See United States v. Badolato, 701 F.2d 915, 919-20 (11th Cir.1983) (conviction for drug conspiracy requires agreement to violate narcotics laws).

Defendants submit the government presented no evidence that Martinez and Gomez knew they were going to the house to steal cocaine. Defendants say that all communications about cocaine were between Gallo, Fernandez and Escobedo and that Gallo never revealed the true object of the burglary to Martinez and Gomez. At trial, Martinez testified that he believed he was accompanying Gallo to steal money, that he did not know Gomez, that the suitcases he took were closed and their contents could not be seen, and that the suitcases were never opened inside the house.

Defendants claim that to convict them the jury had to assume that Gallo told Gomez and Martinez about the cocaine, and that this assumption is insufficient. Defendants stress that "intuition cannot substitute for admissible evidence when a defendant is on trial." See United States v. Hamblin, 911 F.2d 551, 558 (11th Cir.1990). See also United States v. Pedro, 999 F.2d 497, 502 (11th Cir.1993) (evidence insufficient to support conviction for felon in possession because no evidence showed that defendant knew suitcase carried by codefendant contained firearm).

The government says we need only conclude that a reasonable fact finder could find that the evidence established Defendants' guilt beyond a reasonable doubt, see Keller, 916 F.2d at 632, and that reversal is warranted only where no reasonable trier of fact could have found Defendants guilty beyond a reasonable doubt. See United States v. Sharif, 893 F.2d 1212, 1213 (11th Cir.1990). The government argues that, because Gallo told Fernandez he had men ready to steal the cocaine, the jury was reasonable in assuming the men he had ready were Martinez and Gomez and that Martinez and Gomez knew they were going to steal cocaine.

We have considered the arguments of both the government and Defendants and have reviewed the entire record. We have found no evidence proving that Gomez knew he was going to the house to steal cocaine. From this record, the government cannot show that Gallo--or anyone else--ever told Gomez that the true object of the burglary was cocaine. The government's argument that the jury could infer from Gallo's statement that he had "men and guns ready" is insufficient, alone, to prove that Gomez knew he was going to steal cocaine. Cf. Pedro, 999 F.2d at 502. So, we reverse Gomez's convictions for conspiracy to possess cocaine, possession of cocaine and use of a firearm in the commission of a drug offense. ¹

Sufficient evidence does, however, support Gallo's and Martinez's convictions. Martinez testified that he thought they were going to the house to steal $50,000 in cash and that he believed he would be paid $10,000 for his role in the theft. But the jury was entitled to reject Martinez's testimony and to consider it as substantive evidence of his guilt. See United States v. Brown, 53 F.3d 312, 314-15 (11th Cir.1995). In Brown, we held that, at least where corroborative evidence of guilt exists, a defendant's disbelieved testimony can establish an element of the crime and that this rule applies with special force where the element to be proved is the defendant's knowledge or intent. Id. at 314-15. See also Wright v. West, 505 U.S. 277, 295-96, 112 S.Ct. 2482, 2492, 120 L.Ed.2d 225 (1992) (plurality opinion). The jury, observing Martinez's demeanor, was entitled to disbelieve Martinez's testimony and to conclude that the opposite of his testimony was true. ² See Brown, 53 F.3d at 314. So, the jury had an evidentiary basis to believe that Martinez knew he was involved in stealing drugs. Martinez's acts at the pertinent house and his disbelieved testimony at trial when combined with Gallo's statements that Gallo had guns and men ready to "rip-off" the cocaine are more than sufficient to support Martinez's convictions for conspiracy to possess and possession of cocaine with intent to distribute it.

Gallo argues that he cannot be convicted of conspiracy to possess cocaine if his "coconspirators" did not know they were going to the house to steal cocaine. Because sufficient evidence supports Martinez's conspiracy and possession convictions (and thus supports a finding that Martinez did know--he and Gallo, at least--were going to steal cocaine), Gallo's argument fails. Gallo's conspiracy conviction is affirmed.

Exclusion of Testimony

At trial, Martinez sought to testify that Gallo told him they were going to the house to steal money. The district court sustained the government's hearsay objection. ³ Defendants claim the district court erred in excluding as hearsay Martinez's testimony of what Gallo told him about the burglary.

Martinez says the district court erred because the testimony was not being offered to prove the truth of the matter asserted, but to show Martinez's lack of intent and knowledge. See United States v. Rubin, 591 F.2d 278, 283 (5th Cir.1979)....