U.S. v. Martinez

• Decision Date: 13 April 1990
• Docket Number: No. 89-5618,89-5618
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Luis Carlos MARTINEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 374

901 F.2d 374

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

No. 89-5618.

United States Court of Appeals, Fourth Circuit.

Argued Jan. 12, 1990.

Decided April 13, 1990.

Eben Turner Rawls, III, Rankin, Merryman, Dickinson, Rawls & Ledford, Charlotte, N.C., for defendant-appellant.

Max Oliver Cogburn, Jr., Asst. U.S. Atty., argued, Thomas J. Ashcraft, U.S. Atty., on brief, Asheville, N.C., for plaintiff-appellee.

Before RUSSELL and WIDENER, Circuit Judges, and HOFFMAN, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.

WALTER E. HOFFMAN, Senior District Judge:

Luis Carlos Martinez seeks to upset his convictions on drug charges in the district court for the Western District of North Carolina. The superseding indictment charged the defendant with conspiracy to possess with intent to distribute in excess of five kilograms of cocaine, attempt to possess with intent to distribute in excess of five kilograms of cocaine, each in violation of 21 U.S.C. Sec. 846, and traveling in interstate commerce to promote or carry on unlawful drug activity in violation of 18 U.S.C. Sec. 1952. A jury returned a verdict of guilty on all three counts. The court, Chief Judge Robert D. Potter, entered judgment on the verdict on May 22, 1989, and sentenced the defendant to 151 months, the maximum term for the offenses under the Federal Sentencing Guidelines, with a five-year period of supervised release to follow.

On appeal, Martinez challenges his conviction on venue grounds. He contends that the district court committed reversible error by failing to give a requested venue instruction requiring the jury to determine whether an overt act in advancement of a conspiracy or a substantial step toward an attempt was committed in the district where the charges were prosecuted.

Martinez also appeals the sentence imposed, contending that the district court erred in denying a two-step reduction under the Federal Sentencing Guidelines for acceptance of responsibility. The defendant's acknowledgment came after a jury trial in which factual guilt was the primary issue and after preparation of his presentence report. Since we conclude that neither of these grounds for reversal is meritorious, we affirm the judgment below.

I. FACTS

In February 1989, Special Agent Dan Walters of the United States Army Criminal Investigation Division, working undercover in Panama, arranged with a group of Panamanians to smuggle cocaine into the United States. In March 1989, Walters received 30 kilograms of cocaine, $3,000 in cash, and the telephone number of a contact in New York. He was to receive an additional $57,000 after bringing the cocaine into the United States. Upon arriving in Charleston, South Carolina, Walters called the New York number and arranged for someone to come to Charleston to pick up the cocaine. When the contact did not arrive on the agreed flight, another telephone call to New York revealed that, because of miscommunication, the contact had arrived in Charlotte, North Carolina. He was registered in a hotel there under the name of Luis Carlos Martinez. A subsequent call to New York disclosed that Martinez had moved to a hotel in Rock Hill, South Carolina.

In two telephone conversations to Martinez in Rock Hill, Walters was not able to arrange a meeting. A third call to Martinez's hotel revealed that he had left to return to New York. Drug Enforcement Agents intercepted Martinez at the Charlotte, North Carolina, airport. Martinez was dressed as the New York contact had described him to Walters. Martinez and his female traveling companion were carrying $57,000 in cash.

II. VENUE

The appellant contends that his conviction is defective because it is unsupported by a jury finding that the offenses charged actually occurred in the Western District of North Carolina, where the trial was conducted. At trial, the defense requested two jury instructions highlighting the requirement that the government prove by a preponderance of the evidence that venue was proper in the Western District of North Carolina. The court refused the proposed instructions. The court's only reference to venue in the charge to the jury was its reading of the indictment which alleged that the offenses occurred "within the Western District of North Carolina and elsewhere in the United States."

Venue questions in criminal cases "are not merely matters of formal legal procedure" but "raise deep issues of public policy," implicating constitutional concerns. United States v. Johnson, 323 U.S. 273, 276, 65 S.Ct. 249, 251, 89 L.Ed. 236 (1944). Article III, Sec. 2 of the Constitution provides that "the Trials of all Crimes ... shall be held in the State where the said Crimes shall have been committed." Congress has implemented this clause with 18 U.S.C. Sec. 3237(a) which authorizes prosecution of a crime involving more than one district in any district in which the offense "was begun, continued, or completed." See United States v. Levy Auto Parts of Canada, 787 F.2d 946, 949 (4th Cir.), cert. denied, 479 U.S. 828, 107 S.Ct. 108, 93 L.Ed.2d 56 (1986). "When a conspiracy is formed in one district and overt acts are done in furtherance of it in other districts, ... venue may be laid for prosecution of all the conspirators in any one of those districts." Id. at 952.

Venue, therefore, clearly would be proper in the Western District of North Carolina if any overt act in furtherance of the conspiracy to possess cocaine or a substantial step in the attempt to possess cocaine occurred in that district. Venue is an issue in this case because the jury was able to convict the defendant of the offenses charged without an implicit finding that the acts used to establish venue had been proven. See United States v. Moeckly, 769 F.2d 453, 461 (8th Cir.1985), cert. denied, 476 U.S. 1104, 106 S.Ct. 1947, 90 L.Ed.2d 357 (1986).

However, proof of venue may be so clear that failure to instruct on the issue is not reversible error. Id. The proof of venue may be by direct evidence or even by circumstantial evidence alone. See United States v. Black Cloud, 590 F.2d 270 (8th Cir.1979); United States v. Haley, 500 F.2d 302 (8th Cir.1974).

In this case, evidence of the acts committed in the Western District of North Carolina was substantial and uncontroverted, except by Martinez's original claim at the time of his arrest that the purpose of his trip and the $57,000 cash was to purchase a car. No evidence to that effect was presented at trial. The evidence was that Martinez flew to Charlotte, North Carolina, with more than $57,000 in cash with the intent to exchange the money for nearly 30 kilograms of cocaine. He registered at a Charlotte motel and counted the money there. He was subsequently arrested trying to return to New York through the Charlotte airport. Conversations between Martinez and Walters from Martinez's Rock Hill, South Carolina, hotel established his intentions in traveling to Charlotte with the exact amount of money due to Walters for smuggling the cocaine and dressed in the clothing described to identify the contact for exchange of the drugs.

Where evidence, though circumstantial, is this clear on the issue of proper venue, "any error from the denial of jury instructions on the issue is harmless." Moeckly, 769 F.2d at 462, citing United States v. Jenkins, 510 F.2d 495 (2d Cir.1975); United States v. Gillette, 189 F.2d 449 (2d Cir.), cert. denied, 342 U.S. 827, 72 S.Ct. 49, 96 L.Ed. 625 (1951).

The defendant has not contradicted the evidence of activities in the Western District of North Carolina. Given Martinez's presence in Charlotte with the money, dressed as the courier, with the...