US v. Martinez-Lantigua

Filing

OPINION issued by Jeffrey R. Howard, Chief Appellate Judge; Juan R. Torruella, Appellate Judge and David J. Barron, Appellate Judge. Published. [15-2169]

Case: 15-2169

Document: 00117158187

Page: 1

Date Filed: 05/23/2017

Entry ID: 6094095

United States Court of Appeals
For the First Circuit
No. 15-2169
UNITED STATES OF AMERICA,
Appellee,
v.
LEONER MARTÍNEZ-LANTIGUA,
Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]

Before
Howard, Chief Judge,
Torruella and Barron, Circuit Judges.

Víctor A. Ramos-Rodríguez, with whom Wilfredo Díaz-Narváez,
were on brief, for appellant.
Mainon A. Schwartz, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellee.

May 23, 2017

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TORRUELLA, Circuit Judge.

Date Filed: 05/23/2017

Entry ID: 6094095

Following a trial, Leoner

Martínez-Lantigua ("Martínez") was found guilty of conspiracy to
possess with intent to distribute and possession with intent to
distribute at least 15 kilograms but less than 50 kilograms of
cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and
846.

Martínez was sentenced to 121 months of imprisonment.

Martínez appeals, contending that the evidence was insufficient
for his conspiracy conviction and there were errors at his trial.
Because the entire drug deal was captured on video and audio -which show Martínez inspecting the drugs with his own hands -- we
find that there was sufficient evidence to convict Martínez.

We

also find Martínez's claims that there were errors at his trial to
be without merit.

We therefore affirm.
I.

Background

On July 6, 2014, a confidential informant told Homeland
Security Investigations ("HSI") agents that a money laundering and
drug trafficking organization was seeking assistance to transport
cocaine from St. Thomas to Puerto Rico.

That same day, an HSI

undercover agent (the "Agent"), acting as a facilitator, called
the organization and coordinated a meeting to discuss the smuggling
venture.
On July 7, the Agent met with Oscar De la Cruz ("De la
Cruz") and Pedro Wipp-Kelley ("Wipp-Kelley") in Piñones, Puerto

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Rico, to discuss the venture and agreed that, in exchange for
transporting the narcotics, they would pay the Agent $1,000 per
kilogram of cocaine in transportation fees, plus $5,000 in fuel
and travel expenses.

During a series of recorded calls and

meetings, they ultimately agreed to have the Agent transport 48
kilograms of cocaine and provided him with a Blackberry and the
phone number of Erasmo Martínez-Trinidad ("Martínez-Trinidad"),
who had the narcotics in St. Thomas.

The Agent travelled to St.

Thomas and successfully arranged the delivery of the narcotics.
The Agent called Wipp-Kelley on July 12 to arrange the
location for the exchange.

The exchange took place at the Martínez

Nadal Train Station parking lot, in San Juan, Puerto Rico, and was
recorded on video; accompanying audio was provided through a body
wire that the Agent was wearing.
The controlled delivery involved four cars.

Wipp-Kelley

messaged the Agent and informed him that Wipp-Kelley would be
driving a grey Nissan, and that he would be with somebody (who was
later identified as Carlos Carmona).

Wipp-Kelley also informed

the Agent that a second vehicle, a white Altima, would be involved
in the transaction.

It would later turn out that Martínez would

be driving this Altima, with his friend Ramón Coplin in the
passenger seat.

Another undercover agent would drive a small SUV

to the transaction with the Agent in the passenger seat.

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The sham

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cocaine would be located in a separate red undercover vehicle (the
agents

naturally

transaction).

did

not

bring

the

real

cocaine

to

the

The money would be put into the small SUV, and

Martínez would drive away in the red undercover vehicle that
contained the narcotics.
The transaction followed this plan (except, of course,
that the conspirators were arrested before they could drive away).
The Agent got out of the SUV and approached Wipp-Kelley's vehicle,
the

grey

Nissan.

Wipp-Kelley

told

the

Agent

that

the

bag

containing the $43,000 was in the rear seat of this grey Nissan.
After the Agent inspected the bag of money and confirmed its
contents, Carmona placed it in the small SUV.
approached the white Altima.

The Agent then

Martínez was in the driver's seat,

and Coplin in the passenger seat.

The Agent asked Martínez whether

he was going to drive the red vehicle and Martínez nodded his head.
The Agent asked Martínez whether anyone was going "to check that,"
referring to the sham narcotics in the vehicle.
"[o]h, okay."

Martínez replied

Both Martínez and Coplin approached the Agent's

vehicle to inspect the bags and the Agent opened the trunk.

The

Agent opened the bag containing the bricks of sham cocaine to show
them to Martínez.

Martínez looked into the trunk, reached into

the trunk, and touched the sham narcotics.

After Martínez had

completed this inspection of the sham cocaine, the Agent closed

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the trunk of the vehicle, which signaled federal agents to arrest
the conspirators.
After the arrest, Martínez waived his Miranda rights at
the police station and admitted that he was hired to move the
vehicle containing the bags from Point A to Point B for $1,000,
and that he knew that he was to move something illegal because of
the amount of money that he was offered.
Martínez was tried from May 11 to May 19, 2015.

He was

found guilty of conspiracy to possess with intent to distribute
and possession with intent to distribute at least 15 but less than
50 kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A), and 846.
imprisonment.

Martínez was sentenced to 121 months of

Martínez appeals, contending that the evidence was

insufficient for his conviction and his trial was unfair.
II.
A.

Discussion

Sufficiency of the Evidence
Martínez's principal argument on appeal is that the

evidence

was

insufficient

for

his

conviction.

"We

review

preserved challenges to the sufficiency of the evidence de novo."
United States v. Maymí-Maysonet, 812 F.3d 233, 236 (1st Cir. 2016)
(citation omitted), cert. denied, 137 S. Ct. 100 (2016).

On

sufficiency of evidence review, this Court "must view the evidence,
both direct and circumstantial, in the light most favorable to the

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prosecution,
plausible

and

decide

inferences

Page: 6

whether

drawn

Date Filed: 05/23/2017

that

therefrom,

evidence,
would

Entry ID: 6094095

including

allow

a

all

rational

factfinder to conclude beyond a reasonable doubt that the defendant
committed the charged crime."

Id. (citation omitted).

"Given

this difficult standard, defendants raising this claim are 'rarely
successful . . . .'"

United States v. Rivera-Ruperto, 846 F.3d

417, 432 (1st Cir. 2017) (quoting United States v. Moran, 984 F.2d
1299, 1300 (1st Cir. 1993)).

For conspiracies such as the one

Martínez was convicted for, "the government 'need only prove that
the defendant had knowledge that he was dealing with a controlled
substance, not that he had knowledge of the specific controlled
substance.'"

Id. at 433 (quoting United States v. Woods, 210 F.3d

70, 77 (1st Cir. 2000)).
Martínez

concedes

that

he

knew

that

he

was

doing

something illegal, and he concedes that he was paid $ 1,000 for
doing so.

Martínez, however, contends that he did not know that

he was part of a criminal conspiracy, or that the conspiracy
involved illegal drugs.
arguments.

The video recording belies Martínez's

He was caught on tape arriving in the white Altima,

the car that Wipp-Kelley had said he would arrive in, at the exact
location and at the exact time that the drug deal was to take
place.

Not only did he look into the trunk of the undercover

vehicle -- with the unzipped bag of drugs inside it -- but he also

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touched the bricks of sham cocaine with his hands.

Entry ID: 6094095

Only after

Martínez had completed this inspection did the Agent close the
trunk, which was the signal for the police to appear.

We have no

difficulty in finding that such evidence is sufficient to allow a
rational fact-finder to conclude beyond a reasonable doubt that
Martínez knew not only that he was part of a conspiracy to do
something

illegal,

but

also

that

the

conspiracy

involved

a

narcotics deal.
B.

Other Alleged Trial Irregularities
Martínez raises a number of additional issues, none of

which are of any avail to him.
According to Martínez, the transcript of the audio that
accompanied the surveillance video was not properly authenticated.
The transcript was authenticated by the Agent's testimony on the
third day of the trial.

"Because authentication rulings are

necessarily fact-specific, we review such rulings only for mistake
of law or abuse of discretion."

United States v. Alicea-Cardoza,

132 F.3d 1, 4 (1st Cir. 1997) (citation omitted).

This Court has

"discern[ed] no problem with" the authentication of a transcript
by

an

officer

who

was

personally

involved

in

recording

the

transmissions coming from an electronic transmitting device worn
by an informant during a drug transaction and who "compared the
transcript to the tape recording and testified that the transcript

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fairly and accurately represented the conversation on the tape,"
even though the officer did not prepare the transcript.
States v. Anderson, 452 F.3d 66, 77 (1st Cir. 2006).

United

Indeed, the

officer is "in an even better position" to authenticate the
transcript because "he himself had listened to the conversation
. . . while monitoring the controlled [transaction]."

Id.

And

"if the appellant was so concerned about the authenticity of the
government's transcript, he could have submitted his own."
Martínez never submitted his own transcript.

Id.

Rather, on the first

day of trial, he agreed with the government to use the transcript
and to let the Agent identify the speaker.
Martínez also seeks to convince this court that the trial
testimony of a firearms and ammunition expert was not relevant and
caused a prejudicial effect.

The expert testified that two Smith

& Wesson pistols seized from Martínez's co-conspirators were both
functioning firearms, and also as to such basic matters as their
caliber and how many bullets their magazines could hold.

Even

assuming that Martínez preserved this issue, and we would therefore
review for abuse of discretion, we fail to discern any such abuse
here.

See United States v. Corey, 207 F.3d 84, 88 (1st Cir. 2000);

United States v. Sebaggala, 256 F.3d 59, 65 (1st Cir. 2001) ("When
the issue is whether expert testimony will (or will not) materially
assist a jury . . . trial courts enjoy considerable latitude in

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deciding whether to admit or exclude it.").
tool of the drug trade.

Entry ID: 6094095

Firearms are a common

Firearms -- and expert testimony about

them -- can therefore be relevant circumstantial evidence towards
establishing the existence of a drug conspiracy.

See United

States v. Rivera Calderón, 578 F.3d 78, 94 (1st Cir. 2009).
Martínez next takes issue with jury instruction number
13, because, so he claims, it did not contain the third element of
a conspiracy charge, namely that "the defendant knowingly and
voluntarily participated in the conspiracy."
Maryea, 704 F.3d 55, 73 (1st Cir. 2013).

United States v.

Although jury instruction

13 did not explicitly state that "voluntary participation" was the
third element of the offense, it did state that the jury needed to
determine whether Martínez "willfully joined in the agreement."
The instruction clarified:

"To act 'willfully' means to act

voluntarily and intelligently and with the specific intent that
the

underlying

sufficient.

crime

be

committed."

This

instruction

was

See United States v. Allen, 670 F.3d 12, 17 (1st Cir.

2012) (holding identical language to be sufficient conspiracy
instruction under 18 U.S.C. § 371).
Finally, Martínez takes issue with jury instruction
number 16, because he believes that a jury instruction for willful
blindness was not warranted.
if:

Such an instruction is appropriate

"[1] a defendant claims a lack of knowledge, [2] the facts

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suggest a conscious course of deliberate ignorance, and [3] the
instruction, taken as a whole, cannot be misunderstood as mandating
an inference of knowledge."

United States v. Epstein, 426 F.3d

431, 440 (1st Cir. 2005) (alterations in original) (citation
omitted).

These

three

requirements

are

present

here:

(1)

Martínez claimed that he lacked knowledge of the conspiracy -indeed, he presses this argument again on appeal; (2) Martínez
knew that he was hired to do something illegal, but he argued below
-- and presses this on appeal as well -- that he did know what
that

illegal

conduct

was,

which

suggests

that

he

remained

deliberately ignorant; (3) the jury was instructed that "you may
infer [Martínez] had knowledge of a fact if you find that he
deliberately closed [his] eyes to a fact that otherwise would have
been obvious to [him]." (emphasis added); "[i]t is entirely up to
you to determine whether he deliberately closed his eyes to the
fact and, if so, what inference, if any, should be drawn;" and
"mere negligence or mistake in failing to learn the fact is not
sufficient.

There

must

be

a

deliberate

effort

to

remain

ignorant."
III.

Conclusion

For the foregoing reasons, the judgment of the district
court is affirmed.
Affirmed.

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