US v. Martin Teran, No. 11-4791 (4th Cir. 2012)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4791 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARTIN TERAN, a/k/a El Chapin, a/k/a Daniel R. Rodriguez, a/k/a David L. Morales Garcia, a/k/a Hugo Rolland Gomez, Defendant - Appellant. No. 11-4844 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOSUE BENITEZ, a/k/a Beecho, Defendant - Appellant. Appeals from the United States District Court for the District of South Carolina, at Columbia. Joseph F. Anderson, Jr., District Judge. (3:10-cr-00468-JFA-1; 3:10-cr-00468-JFA-2) Argued: September 20, 2012 Decided: Before KING, GREGORY, and WYNN, Circuit Judges. November 1, 2012 Affirmed by unpublished opinion. Judge Gregory opinion, in which Judge King and Judge Wynn joined. wrote the ARGUED: Joshua Snow Kendrick, Columbia, South Carolina; Jonathan McKey Milling, MILLING LAW FIRM, LLC, Columbia, South Carolina, for Appellants. Julius Ness Richardson, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. ON BRIEF: William N. Nettles, United States Attorney, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 GREGORY, Circuit Judge: A federal jury convicted Appellants Martin Teran and Josue Benitez on seven counts stemming from a murder-for-hire scheme. Appellants argue that the verdict should be vacated because the district court made a number of grave evidentiary errors. Appellant Teran further argues that the district court erred in denying his Reviewing without motion for Appellants merit. acquittal numerous Moreover, on two claims, there was we firearms find charges. each substantial to be evidence to support Appellants convictions on all seven counts, rendering any error made by the district court harmless. For the reasons below, we affirm. I. One Benitez night met Ranchos. in in 2008, Houston, Appellants Texas, at Martin the Teran and after-hours Josue bar Los A Los Ranchos bouncer, Luis Sandoval, overheard Teran recruit Benitez for a hit. Someone from Honduras had offered Teran $40,000 to kill a man later identified as Jorge Ramos. Teran offered Benitez $5,000 from the pot to shoot Ramos and said he would supply the gun. realized Sandoval overheard Benitez agreed. the entire Teran then conversation, gestured to him that he better not tell anyone what he heard. 3 and On October 30, 2008, after the agreement was made, cellphone records placed Teran and Benitez leaving Houston and arriving in Columbia, South Carolina, a day later. Upon arrival, Teran and Benitez checked into a local hotel and later that day purchased a distinctive green pick-up truck with a white door. On November 2, 2008, in Columbia, South Carolina, Jorge Ramos was fatally shot in front of his trailer. A witness identified Benitez as running from behind Ramos s trailer with a gun. Other witnesses observed a green pick-up truck with a white door speeding away from Ramos s trailer. Teran and Benitez checked out of the hotel the same day, and according to cellphone records, left South Carolina and returned to Texas. Back at Los Ranchos, on November 14, 2008, Sandoval called law enforcement to inform them that he heard Benitez bragging about a murder. In the course of bragging, Benitez provided a number of fact-specific details about the murder. Sandoval also told law enforcement that he observed Benitez with a firearm. As a result of this information, Officers Moore and Vogelpohl established surveillance outside the bar. After Los Ranchos closed for the night, the officers witnessed Benitez getting into the passenger seat of a white Jeep that drove away. Officers Moore and Vogelpohl followed the Jeep and pulled it over after observing it cross the center lane twice. 4 Officer Vogelpohl approached sitting, and window. He the smelled asked car, at pronounced. which marijuana Benitez Benitez could not do. the passenger to side as where Benitez produce Benitez rolled was down identification, the which Officer Vogelpohl ordered Benitez out of point the smell of marijuana became more Benitez made a movement towards his back pocket and Officer Vogelpohl stopped him, believing he may have had a gun. He handcuffed Benitez and patted him down, discovering a bag of marijuana in Benitez s back-pocket. Benitez was arrested, and Officer Moore searched the passenger area of the car. course of the search, he discovered a Beretta In the .380 pistol. Subsequent ballistic reports determined it was the same gun used to kill Ramos. In Three days later, Teran was apprehended. post-Miranda discussed the killing statements, of details about the murder. both Ramos, Benitez corroborating and a Teran number of Benitez said, among other things, that he was familiar with the green truck with the white door. He explained Carolina, that where he they and Teran checked left into a looking for a man in a trailer park. knew about the green and white from Houston hotel, and to South later went Teran said that he also truck, that he heard the gunshots, and was on the phone with the get-away driver at the time of the murder. 5 Around December 8, 2008, Teran and Benitez were extradited by commercial airline to South Carolina. During a flight delay, a transporting officer asked Teran if he was a member of the gang MS-13. Teran initially responded no, but when asked again, responded affirmatively. While in discussed his cellmate. pretrial In cellmate that custody gang-membership a particularly his brother in and South Ramos loquacious had been Carolina, murder moment, caught with he with Teran told the his his murder weapon and that he was present at the scene when Ramos was shot; although he was not the shooter. Teran also declared he did not want to spend life in prison for a crime he was paid to commit. Before trial, prison officials intercepted a coded letter from Teran addressed to Benitez. A second coded letter from Teran to Benitez was found in Benitez s cell. decoded by an FBI Cryptologist. I m doing everything The letters were The most scandalous parts read: possible so that [expletive] [Sandoval] won t come to testify against you . . . My attorneys say that he is the confidential informant . . . sent a message [Sandoval]. Sandoval to [our associates] to take Luis I already care of Luis Three days after the letters were intercepted, received threatening text referred to as a snitch. 6 messages in which he was Appellants originally faced state murder charges in South Carolina. A federal indictment was then filed against Teran and Benitez on April 21, 2010. December 21, 2010. A superseding indictment was filed Teran and Benitez were charged with traveling in interstate commerce to commit a murder for hire (Count 1), 18 U.S.C. § 1958; use of a firearm in relation to a crime of violence or drug trafficking offense (Count 2), 18 U.S.C. § 924(c); being illegal aliens in possession of a firearm (Count 3), 18 U.S.C. § 922(g)(5)(A); and illegal reentry into the United States 8 U.S.C. § 1326. (Count 6) and after being (Counts 4 and 5), Teran was also charged with witness tampering obstruction §§ 1503, 1512. deported of justice (Count 7). 18 U.S.C. On January 6, 2011, Teran and Benitez entered not guilty pleas to all seven charges, and trial began January 25, 2011. On February 10, 2011, a federal jury found Teran and Benitez guilty on all counts, and the district judge sentenced Teran and Benitez to life in prison on August 3, 2011. II. Appellants obtained in first argue violation of that evidence their used constitutional therefore should have been suppressed. at trial was rights and Specifically, Benitez argues that the gun entered into evidence was found as a result of an illegal search in violation 7 of his Fourth Amendment rights; Teran argues that the admission of Benitez s statement in which his Confrontation government name was Clause violated redacted rights; their violated his Appellants Due Process Sixth both Amendment argue the by not rights investigating the owner of the cellphone number from which text messages were entered into evidence; and Teran argues his unMirandized statement that he is a member of MS-13 was taken in violation of his Fifth Amendment rights. We review the district court s factual findings for clear error and legal conclusions de novo. United Vankesteren, 553 F.3d 286, 288 (4th Cir. 2009). States v. Applying this standard of review, we find Appellants arguments unavailing. A. Benitez argues that the search of the car in which he was a passenger violated his Fourth Amendment rights, and therefore the gun discovered therefrom should have been suppressed. We have repeatedly held that if an officer smells marijuana upon a lawful traffic stop he has probable cause to search both the suspect and the passenger area of the car. See United States v. Carter, 300 F.3d 415, 422 (4th Cir. 2002); United States v. Haley, 669 F.2d 201, 203 (4th Cir. 1982). do not dispute the legality of the traffic stop. Appellants Once Officer Vogelpohl smelled marijuana, therefore, he had probable cause to search both Benitez s person and 8 the passenger-area of the vehicle for contraband. Thus, the search of Benitez and the car and the subsequent discovery of the gun were lawful. B. Teran contends that the district court violated his Sixth Amendment Confrontation Clause rights by admitting a sanitized version of Benitez s statement in which his name was replaced with the other person. Our precedent is unambiguous in that statements redacting a co-defendant s name are constitutionally permissible. See United States v. Lighty, 616 F.3d 321, 350 (4th Cir. 2010); United States v. Akinkoye, 185 F.3d 192, 198 (4th Cir. 1999); United States v. Vogt, 910 F.2d 1184, 1191-92 (4th Cir. 1990). Even if one can read the redacted statement in light of other evidence as implicating a defendant, this does not violate the Confrontation Clause. See United States v. App x 259, 263 (4th Cir. 2012) (per curiam). Glisson, 460 F. Teran s Sixth Amendment rights were not violated by the admission of Benitez s statement. C. Appellants allege the government violated its constitutional duty as articulated in Brady v. Maryland, 373 U.S. 83 (1963), when it did not employ all available investigative techniques to discover the owner of a cellphone number from which text messages were entered into evidence. 9 The Supreme Court has held there is no Due Process violation simply because the police fail to use a particular investigatory tool, as the police do not have a constitutional duty to perform any particular tests. 488 U.S. 51, 58-59 (1988). Arizona v. Youngblood, Furthermore, we have held that Brady does not apply to evidence that is available to the defendant from other sources. United States v. Bros. Constr. Co. of Ohio, 219 F.3d 300, 316 (4th Cir. 2000) (quoting United States v. Wilson, 901 F.2d 378, 380 (4th Cir. 1990)). The text messages in question were disclosed to Appellants and Appellants were then able to subpoena Appellants were able phone employ to the records. their own Because investigatory techniques to determine the owner of the cellphone number, no constitutional violation occurred. D. Teran also claims the un-Mirandized statement he made to law enforcement that he is a member of MS-13 was a result of custodial rights, Teran interrogation and was therefore subject in violation should have to custodial of been his Fifth Amendment suppressed. Whether interrogation raises two questions of first impression in this Circuit not fully briefed by either party. One, whether the rule announced in Howes v. Fields, 132 S.Ct. 1181 (2012), that inmates are not in constant custody for Miranda purposes applies 10 to pre-conviction detainees. See also United States v. Conley, 779 F.2d 970 (4th Cir. 1985); United States v. Cooper, 800 F.2d 412 (4th Cir. 1986). And two, whether routine booking questions that also incriminate the defendant exception to Miranda. fall as Teran s the booking question See United States v. D Anjou, 16 F.3d 604, 608-09 (4th Cir. 1994). however, under We do not reach these questions, statement was admissible under the independent source doctrine. It is well established that the independent source doctrine allows admission of evidence that has been discovered by means wholly independent of any constitutional violation. Nix v. Williams, 467 U.S. 431, 443 (1984). While normally applied in the Fourth Amendment context, the independent source doctrine applies in equal force to Fifth Amendment violations. See id. at 442 n.3; Murphy v. Waterfront Comm n of New York Harbor, 378 U.S. 52, 79 (1964); Kastigar v. United States, 406 U.S. 441, 460-61 (1972); see also United States v. Patane, 542 U.S. 630, 639 (2004) ( [T]he Miranda rule does not require that the statements [taken without complying with the rule] . . . be discarded as inherently tainted. (internal quotation marks and citation omitted)). Here, Teran s gang affiliation was clearly available from other sources. MS-13. Sandoval testified that Teran was a member of Beyond this, Teran willfully admitted to his cellmate 11 that he was a member of the gang. The independent source doctrine of evidence initially of, illegal government permits discovered conduct, during, but the or later introduction as a result obtained independently, activities untainted by the initial illegality. from lawful United States v. Rodriquez-Morales, 972 F.2d 343, 1992 WL 175969, at *3 (4th Cir. 1992) (unpublished per curiam) (citing Murray v. United States, 487 U.S. 533 (1988)). Because evidence of Teran s gang membership was available from multiple independent sources, the district court did not err in admitting Teran s own statement, even assuming it was taken in violation of his Fifth Amendment rights. III. Appellants next challenge the district court s admission of several pieces of evidence. We review a evidentiary rulings for abuse of discretion. Johnson, 617 F.3d 286, 292 (4th Cir. 2010). abuse of discretion here, Appellants district court s United States v. Because we find no arguments can be erred in dispatched of summarily. A. Appellants admitting assert evidence of that the threatening 12 district text court messages received by Sandoval. They argue that the messages were irrelevant, unauthenticated, and highly prejudicial. The messages in question were undoubtedly relevant. enforcement intercepted a letter from Teran stating he trying to prevent Sandoval from testifying at trial. reasonable to infer that threatening text Law was messages It is sent to Sandoval in close proximity to the interception of this letter were related. Likewise, the messages were properly authenticated, as authentication only requires a jury to make a factual determination of whether the evidence is that which the proponent claims. (4th Cir. 2009) United States v. Vidacak, 553 F.3d 344, 349 (internal quotation marks omitted). Sandoval testified as to the personal nature of the messages, including the threats to his family and how they aligned with Teran s knowledge of his family. the text messages authentication only were A reasonable juror could infer that sent requires by Teran proof (or an associate), sufficient to support finding that the item is what the proponent claims it is. R. Evid. 901(a). Finally, the text messages as were a Fed. highly probative, as they corroborated the letters sent by Teran. The district court did not abuse its discretion by admitting the text messages. 13 B. Appellants also maintain that evidence of their membership in MS-13 was inadmissible as it is irrelevant and highly prejudicial. As the crime in question was a murder-for-hire, Appellants gang membership gave rise to the motive for the killing and formed the basis for their relationship. wisely explained, admission of As our sister Circuit gang-related evidence is appropriate to demonstrate the existence of a joint venture or conspiracy and a relationship among its members. See United States v. King, 627 F.3d 641, 649 (7th Cir. 2010) (internal quotation marks omitted). Furthermore, the district court limited gang testimony to issues relevant to the case, ensuring that the evidence of gang membership was no more sensational than the crime in question. 631, 637 (4th Cir. 1995) See United States v. Boyd, 53 F.3d ( [T]he balancing test undeniably weighs in favor of admitting the evidence, because the evidence . . . did not involve conduct any more sensational or disturbing than the crimes with which he was charged. ). Evidence of Appellants gang membership was properly admitted. Appellants argument that the gang expert s testimony was prejudicial is also fruitless. The district court reviewed and sanitized the expert testimony outside the presence of the jury. The district court then made a cautious 14 assessment that the expert testimony would be useful in clarifying events for the jury, corroborating witness statements, and identifying Appellants gang tattoos. In short, the district court made a deliberate, well- reasoned determination as to the relevance of both Appellants gang membership and the use of expert testimony. We do not find this to be clear error. * IV. Finally, arguing he convictions Teran makes should have under 18 a last-ditch been U.S.C. attempt acquitted § 924(c) * (use for reprieve, of his firearms of a firearm in Appellants also take issue with the admission of Bureau of Alcohol, Tobacco and Firearms (ATF) documents, Teran s prior gun charge, and Teran s wife s translated prior inconsistent statement. These arguments hold no water. The ATF forms are admissible business records under Federal Rule of Evidence 803(6). Federal regulation requires firearm dealers to fill out a Form 4473 for every firearm transaction, and then submit the forms to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). See 27 C.F.R. §§ 478.124, 478.127. Teran s prior firearms conviction is admissible under the intent exception to bad character evidence. See Fed R. Evid. 404(b). Because Teran pled not-guilty to possession of a firearm, any past firearm conviction was relevant as to his intent. See United States v. Brown, 398 F. App x 915, 917 (4th Cir. 2010) (per curiam). And just because Teran s wife s statement needed to be translated does not render the statement inadmissible, as we have stated that, except in unusual circumstances an interpreter is no more than a language conduit and therefore his translation do[es] not create an additional level of hearsay. Vidacak, 553 F.3d at 352 (internal quotation marks and citation omitted). There is nothing in the record that indicates the interpreter was anything more than a conduit. 15 relation to a crime of violence or drug trafficking offense) and 18 U.S.C. firearm). § 922(g)(5)(A) (illegal alien in possession of a Teran contends there was insufficient evidence for a jury to conclude he actually possessed the murder weapon. When reviewing a district court s denial of a motion for judgment of acquittal based upon insufficiency of the evidence, [w]e must determine whether there is substantial evidence to support the jury s verdict, viewing the evidence in the light most favorable to the government. United States v. Masiarczyk, 1 Fed. App x 199, 203 (4th Cir. 2001) (citing United States v. Sutton, 961 F.2d 476, 478 (4th Cir. 1992)). The record at hand contains more than enough evidence to sustain Teran s firearms convictions, rendering his argument feckless. A. While placing the the gun government in may Teran s not hands, have eyewitness there is testimony certainly enough evidence for a reasonable person to make that inferential leap. Sandoval testified that he overheard Teran agreeing to provide the gun. Further, a jury could infer Teran had constructive possession of the gun, as he coordinated the murder-for-hire scheme. Finally, the jury could have found Teran guilty under the Pinkerton co-conspirator liability theory; because Benitez is guilty of the crime, so is Teran. See United States v. Chorman, 910 F.2d 102, 110-11 (4th Cir. 1990) ( Federal courts 16 consistently for have substantive followed offenses Pinkerton committed in in affirming the convictions course of and in furtherance of a conspiracy, based on the defendant s knowledge of and participation in that conspiracy. ); Pinkerton v. United States, 328 U.S. 640 (1946). A defendant can be found guilty of an offense reasonably foreseeable as a necessary or natural consequence of the conspiratorial agreement. United States v. Aramony, 88 F.3d 1369, 1380 (4th Cir. 1996) (internal quotation marks omitted). It is undoubtedly foreseeable that Teran can be found guilty under Pinkerton liability theory for possession of a firearm, as the gun was the very object used to perpetrate the conspiracy in question. There is enough evidence to support Teran s firearms convictions under multiple theories, thus the district court did not err in denying Teran s motion of acquittal. V. Ultimately, this Court will only overturn a jury verdict in the rarest of circumstance. verdict unless, without We will not [] disturb a jury weighing the evidence or assessing witness credibility, we conclude that reasonable people could have returned a verdict only for the moving party. Randall v. Prince George s County, Md., 302 F.3d 188, 201 (4th Cir. 2002) (citing Cooper v. Dyke, 814 F.2d 941, 944 (4th Cir. 1987)). 17 Even assuming Appellants assertions of error are true, there is still overwhelming evidence on the record to support the jury s verdict, rendering any error made by the district we affirm court harmless. VI. For the foregoing reasons, Appellants convictions on all seven counts. AFFIRMED 18

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