U.S. v. Martinez

• Decision Date: 04 August 1978
• Docket Number: No. 77-5684,77-5684
• Citation: 577 F.2d 960
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Marienne MARTINEZ and Maritza Cruz-Ojeda, Defendants-Appellants. Summary Calendar. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 960

577 F.2d 960

UNITED STATES of America, Plaintiff-Appellee, v. Marienne MARTINEZ and Maritza Cruz-Ojeda, Defendants-Appellants.

No. 77-5684

Summary Calendar. ^*

United States Court of Appeals Fifth Circuit.

Aug. 4, 1978.

Alan E. Weinstein, Miami Beach, Fla., for Martinez.

Theodore J. Sakowitz, Federal Public Defender, Lurana S. Snow, Asst. Federal Public Defender, Miami, Fla., for Cruz-Ojeda.

Jack V. Eskenazi, U. S. Atty., Kevin M. Moore, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

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

Before RONEY, GEE and FAY, Circuit Judges.

PER CURIAM:

Defendants Marienne Martinez and Maritza Cruz-Ojeda appeal their jury convictions of knowingly and intentionally importing 2.918 grams of cocaine into the United States (21 U.S.C.A. §§ 952(a), 960(a)(1)), and of knowingly possessing the same with intent to distribute (21 U.S.C.A. § 841(a)(1)). They argue the Government failed to prove they knew their luggage contained cocaine when they came through customs, an illegal search, a pretrial nondisclosure violation by the Government, and a trial error in permitting a Government witness to indicate that defendants made adverse statements after Miranda warnings. Finding sufficient evidence to support the jury verdict and insufficient record support for the other errors argued, we affirm.

The defendants traveled by air from Caracas to Kingston, then to Nassau, and finally to Miami. At the customs preclearing station in Nassau, a United States Customs Inspector checked their several pieces of luggage. A probe inserted into a suitcase brought out a white substance which a field test showed to be cocaine. The defendants were not apprehended, but allowed to board their plane for Miami. The customs inspector informed Miami customs of his findings with a description of the defendants, their luggage, baggage numbers, flight number, and time of arrival. Upon arrival at Miami International Airport, defendants obtained their baggage from the baggage claims area with the help of a porter and loaded it into the back of a station wagon. Having been under the constant observation of a Miami customs patrol officer, the defendants were then requested to go to the customs area with their luggage. Inspection of two zippered bags disclosed the presence of cocaine concealed beneath an unusual hard linoleum lining which was removed by breaking open the frames.

Defendants argue that when they were in the parking lot loading their bags into the waiting station wagon, they had already passed beyond the functional equivalent of the border and could not be searched without a warrant. Having been under constant surveillance after crossing the border, however, and still being in the airport area, defendants were clearly subject to a customs search for which no warrant is required. United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976); Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1976); Carroll v. United States, 267 U.S. 132, 154, 45 S.Ct. 280, 69 L.Ed. 543 (1925); United States v. Brom, 542 F.2d 281 (5th Cir. 1976); United States v. Flores, 531 F.2d 222 (5th Cir. 1976).

The defendants having brought the cocaine-laden luggage into the United States and having claimed the two zippered bags as theirs, the jury could find they knew of the contents. United States v. Squella-Avendano, 478 F.2d 433 (5th Cir. 1973). See also United States v. Oviedo, 525 F.2d 881, 885 n.10 (5th Cir. 1976).

The complaint that the Government used an undisclosed and prejudicial statement of the defendant in violation of the standing discovery rule and Rule 16 of the Federal Rules of Criminal Procedure stems from this occurrence at trial, during the Government's direct examination of a customs officer:

Q. Was there anyone with the two defendants, or were they alone?

A. No. There was a young lady who I believe was the sister of Miss Martinez who was brought down to the room and I had her sit down and just wait until we had this situation resolved.

And she was sitting there and waiting for the decision.

And at that time I believe Miss Martinez came over to me and asked me who was in charge of this particular Customs operation. I told her I was in charge. And she said, "That lady over there is my sister. She has nothing to do with this. Let her go. She has nothing to do with it."

She was visibly upset and distraught, and I at that time told her she would have to wait until we finished this whole thing; that I had no idea of what the connection her sister had with this case.

MR. WEINSTEIN: Your Honor, may we approach the Bench?

THE COURT: All right.

After defendant's motion for exclusion and mistrial, considerable testimony was taken and discussion held outside the jury's presence as to when the Government learned of the statement, when it decided to use the testimony, and what prejudice the defendant incurred by not learning of the statement until trial.

The defendant's statement had not been recorded and was not contained in any written report. The district court held defendant's oral statement was spontaneous and voluntary and not in response to interrogation by a Government agent. See Fed.R.Crim.P. Rule 16(a)(1)(A) (upon request, the Government shall permit the defendant to inspect: "any oral statement which the government intends to offer in evidence at the trial made by the defendant . . . in response to interrogation . . . ."). See also United States v. Manetta, 551 F.2d 1352 (5th Cir. 1977); United States v. Green, 548 F.2d 1261, 1266-1267 (6th Cir. 1977).

Refusing to condone the way in which the Government handled the matter, however, the court focused on the claimed prejudice: the inability of defense counsel to refute the statement by calling defendant's sister as a witness. To eliminate this prejudice, the court had the sister brought to the courthouse and made available to the defendants and their counsel during a three-hour recess after the close of the...