U.S. v. Martinez

• Citation: 562 F.2d 633
• Decision Date: 23 September 1977
• Docket Number: No. 77-1616,77-1616
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ramon D. MARTINEZ, and Gumaro Luis Tamez, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 633

562 F.2d 633

UNITED STATES of America, Plaintiff-Appellee, v. Ramon D. MARTINEZ, and Gumaro Luis Tamez, Defendants-Appellants.

No. 77-1616.

United States Court of Appeals Tenth Circuit.

Sept. 23, 1977.

John E. Green, Acting U. S. Atty., W. D. Okl., Oklahoma City, Okl., Charles Lee Waters and William S. Price, Asst. U. S. Attys., Oklahoma City, Okl., for plaintiff-appellee.

L. Aron Pena of Pena, McDonald, Prestia & Zipp, Edinburg, Tex., for defendants-appellants.

Before HOLLOWAY, McWILLIAMS and BARRETT, Circuit Judges.

HOLLOWAY, Circuit Judge.

Appellant-defendants appeal an order denying their motion to dismiss Count I of a criminal indictment against Ramon D. Martinez (Martinez) and Gumara Luis Tamez (Tamez) on the ground that such prosecution is prohibited by the Double Jeopardy Clause of the Fifth Amendment. ¹ The relevant facts are as follows:

On March 25, 1974, in the United States District Court for the Southern District of Texas, Brownsville Division, an indictment was returned charging that on or about December 11, 1973 in the Brownsville Division of the Southern District of Texas, Martinez, Tamez, Alonzo Alejandro Asoca and Juan Guerra-Sobrevilla, together and with other persons unknown to the grand jurors, conspired to unlawfully possess with intent to distribute a quantity of marijuana, a controlled substance, in violation of 21 U.S.C. §§ 846 and 841(a) (1). ² Count I alleged two overt acts to effectuate the conspiracy (1) that on December 11, 1973, Martinez drove to a border patrol checkpoint near La Gloria, Texas, and (2) that Martinez was followed to the checkpoint by a car bearing the three other alleged co-conspirators. Count II of the same Texas In the Texas case, a directed verdict of acquittal on the conspiracy charge was entered in favor of both Martinez and Tamez, after suppression of some crucial evidence.

indictment alleged the substantive offense by Martinez and Tamez and the same two co-defendants of possessing with intent to distribute approximately 335 pounds of marijuana, contrary to 21 U.S.C. § 841(a)(1).

On July 5, 1977, in the United States District Court for the Western District of Oklahoma, the indictment involved in this appeal was returned. ³ Count I of this Oklahoma indictment charged that some 20 named defendants, including Martinez and Tamez, and nine additional named but unindicted co-conspirators, including Mark Spencer, conspired together and "with other persons unknown to the Grand Jury" from "on or about November, 1973, and continuously thereafter, until on or about January, 1977" in the Western District of Oklahoma, and in Texas, West Virginia, Tennessee, Arkansas, Ohio and elsewhere to distribute marijuana, a controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and 846. In Count I of the same Oklahoma indictment 41 overt acts are alleged. In 16 of the overt acts Martinez is named and in two of these Tamez is also named.

Defendants Asoca and Sobrevilla, who were named as defendants in the Texas indictment, are not among the alleged conspirators specifically named in the Oklahoma indictment.

It is Count I of the Oklahoma indictment which was unsuccessfully attacked by the double jeopardy plea of Martinez and Tamez. After that adverse ruling, these defendants commenced this appeal.

I

In support of their double jeopardy plea Martinez and Tamez essentially argue that the conspiracy charged in the Texas indictment is but a slice of the larger conspiracy alleged in the Oklahoma indictment. They say that the agreement charged as the basis of the indictment in this Oklahoma case was entered into prior to December 11, 1973, and the mere fact that the agreement continued over a period of time and involved persons other than those specifically named in the indictment in Texas does not make these separate conspiracies. They emphasize the fact that December 11, 1973, the approximate date of the alleged conspiracy charged in the Texas indictment, falls within the time period covered by the indictment in this Oklahoma case, which covers the period from about November, 1973, until January, 1977.

The district court held an evidentiary hearing on the motion raising the double jeopardy issue. Martinez and Tamez called only two witnesses, Mark Spencer and his wife, Anita Spencer. Their testimony established that during the latter part of 1973, Mark Spencer and his wife were living in San Antonio, Texas, where Mark was serving in the Army (R. IV. 14). Through his military service Mark was acquainted with one Castillio who was the brother-in-law of Ramon Martinez (Id. at 24). Mark testified that he received 40 pounds of marijuana from Castillio (Id. at 25). Anita Spencer testified that she was not present when her husband "made the deal" on this marijuana, but Mark told her that he was getting it from Martinez. (Id. at 47-48).

This marijuana was taken to Oklahoma City by Mark and Anita Spencer and given to one Bill Katsakis (Id. at 25, 45). (William Katsakis is an alleged co-conspirator in the instant case). Upon the Spencers' return to San Antonio, Martinez and two other persons whom Mark was unable to identify came by the Spencers' apartment (Id. at 25). This was the first time Mark had seen Martinez, but he had talked to him on the phone. (Id. at 26). Martinez identified himself at the apartment and Mark paid Martinez "(t)hree-thousand-something" because he had understood from their phone conversation that it was his marijuana (Id. at 34). This payment which occurred around December 1, 1973 was Mark's first dealing with Martinez. (Id. at 25-26).

In the call from Martinez before this payment, Martinez had said he was Castillio's relative and that he had lots of marijuana and that if Mark wanted to buy in the future Martinez would deliver it for certain prices. (Id. at 26-27). Mark probably told Martinez that he might be interested. (Id. at 32). Mark testified that he and Martinez had discussed future transactions in a phone conversation about December 1; however, he said that from about December 1 to December 11 he was not under the impression that Martinez had agreed to deliver other marijuana. It was not until around the first of the year that Martinez and Mark got into such deliveries. (Id. at 37-38).

An opinion of the trial court in the Texas case was introduced as an exhibit by Martinez and Tamez at the double jeopardy hearing in the Oklahoma case. That opinion makes the following findings (R. II. 52-57):

On December 11, 1973, a 1973 Ford pickup approached the Border Patrol checkpoint located six miles northwest of La Gloria, Texas. The checkpoint was manned by agents Wheeler and Smith of the Border Patrol who were under orders to stop all northbound vehicles in order to detect the presence of any illegal aliens. The driver of the truck identified himself as Ramon D. Martinez and stated that he was an American citizen living in Donna, Texas. While inspecting the vehicle, the agents noticed a large tool box in the back of the truck. The driver willingly complied with the request to open the tool box and inside were found several large burlap sacks and several wrapped packages which altogether contained approximately 335 pounds of marijuana.

The Texas opinion further found that about five minutes after the Ford pickup was stopped, a 1959 Cadillac approached the checkpoint. It also was stopped and the driver identified himself as Luis Gamez Tamez, a resident alien living in Donna, Texas, the same town where Martinez resided. The car was also occupied by two other persons, both of whom lived in Weslaco, Texas. The occupants of the Cadillac said they were going hunting. The agents testified that this seemed rather curious to them as no hunting clothes or deer rifles were visible in the passenger compartment, and the trunk was found to contain only one shotgun. Suspecting that the occupants of the Cadillac were somehow connected with the marijuana found in the pickup, the agents requested that the driver pull the Cadillac off the highway for further investigation. About 45 minutes later, Agent Alfredo Villarreal and Agent James Kuykendall of the Drug Enforcement Administration arrived to continue the investigation.

The opinion further finds that Martinez initially denied any acquaintance with the occupants of the Cadillac, who likewise denied ever having seen Martinez. On further questioning, however, Martinez and Tamez acknowledged that they knew each other and had seen each other in the Donna area. Agent Kuykendall then went to the Cadillac to search it and under the right front floor mat he found a wallet belonging to Martinez.

From the Texas opinion, it appears that the wallet discovered in the Cadillac was relied on by the government as the essential evidentiary link between the occupants of the Cadillac and the driver of the pickup to establish the alleged conspiracy to possess, with intent to distribute, the marijuana found in the pickup. The decision of the trial judge in the Texas case to suppress the wallet as to both Tamez and Martinez mandated an acquittal of both as to the conspiracy count of the indictment (R. II. 56-57). The suppression of the wallet also removed any evidentiary link between Tamez and the marijuana he was alleged to possess in the substantive count. He was therefore acquitted on this charge as well. (Id. at 57). Defendant Martinez was convicted on the substantive count of possession with intent to distribute; however, this conviction was later reversed. United States v. Martinez, 5th Cir., No. 74-366 (August 8, 1975) (unpublished).

In the instant case, the trial court's memorandum opinion denied the plea of double jeopardy. The court rejected the contention that the Texas indictment is but a slice of the larger conspiracy alleged in the Oklahoma indictment. The court said that the Texas indictment, upon which the appellants have been tried and acquitted, involved only an agreement to possess with intent to...