United States v. Martin Teran , 496 F. App'x 287 ( 2012 )

UNPUBLISHED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: November 1, 2012
Before KING, GREGORY, and WYNN, Circuit Judges.
Affirmed by unpublished opinion. Judge Gregory wrote the
opinion, in which Judge King and Judge Wynn joined.
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Unpublished opinions are not binding precedent in this circuit.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 motion for acquittal on two firearms charges.
Reviewing Appellants’ numerous claims, we find each to be
without merit. Moreover, there was substantial 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 night in 2008, Appellants Martin Teran and Josue
Benitez met in Houston, Texas, at the after-hours bar “Los
Ranchos.” 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. Benitez agreed. Teran then
realized Sandoval overheard the entire conversation, and
gestured to him that he better not tell anyone what he heard.
3
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. Officer
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Vogelpohl approached the passenger side where Benitez was
sitting, and smelled marijuana as Benitez rolled down the
window. He asked Benitez to produce identification, which
Benitez could not do. Officer Vogelpohl ordered Benitez out of
the car, at which point the smell of marijuana became more
pronounced. 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. In the
course of the search, he discovered a Beretta .380 pistol.
Subsequent ballistic reports determined it was the same gun used
to kill Ramos. Three days later, Teran was apprehended.
In post-Miranda statements, both Benitez and Teran
discussed the killing of Ramos, corroborating a number of
details about the murder. Benitez said, among other things,
that he was familiar with the green truck with the white door.
He explained that he and Teran left from Houston to South
Carolina, where they checked into a hotel, and later went
looking for a man in a trailer park. Teran said that he also
knew about the green and white 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 pretrial custody in South Carolina, Teran
discussed his gang-membership and Ramos’ murder with his
cellmate. In a particularly loquacious moment, he told his
cellmate that his “brother” had been caught with the 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. The letters were
decoded by an FBI Cryptologist. The most scandalous parts read:
“I’m doing everything possible so that [expletive] ‘Luis’
[Sandoval] won’t come to testify against you . . . My attorneys
say that he is the ‘confidential informant’ . . . I already
sent a message to [our associates] to take care of Luis
[Sandoval].” Three days after the letters were intercepted,
Sandoval received threatening text messages in which he was
referred to as a “snitch.”
6
Appellants originally faced state murder charges in South
Carolina. A federal indictment was then filed against Teran and
Benitez on April 21, 2010. A superseding indictment was filed
December 21, 2010. 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 after being deported (Counts 4 and 5),
8 U.S.C. § 1326. Teran was also charged with witness tampering
(Count 6) and obstruction of justice (Count 7). 18 U.S.C.
§§ 1503, 1512. 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 first argue that evidence used at trial was
obtained in violation of their constitutional rights and
therefore should have been suppressed. Specifically, Benitez
argues that the gun entered into evidence was found as a result
of an illegal search in violation of his Fourth Amendment
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rights; Teran argues that the admission of Benitez’s statement
in which his name was redacted violated his Sixth Amendment
Confrontation Clause rights; Appellants both argue the
government violated their Due Process rights by not
investigating the owner of the cellphone number from which text
messages were entered into evidence; and Teran argues his un-
Mirandized 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 States v.
Vankesteren, 553 F.3d 286, 288 (4th Cir. 2009). 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). Appellants
do not dispute the legality of the traffic stop. Once Officer
Vogelpohl smelled marijuana, therefore, he had probable cause to
search both Benitez’s person and the passenger-area of the
8
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. Glisson, 460 F.
App’x 259, 263 (4th Cir. 2012) (per curiam). 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.” Arizona v. Youngblood,
488 U.S. 51, 58-59 (1988). 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 the phone records. Because
Appellants were able to employ their own 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 interrogation in violation of his Fifth Amendment
rights, and therefore should have been suppressed. Whether
Teran was subject to custodial 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 to pre-conviction
10
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 fall under the ‘booking question’
exception to Miranda. See United States v. D’Anjou, 16 F.3d
604, 608-09 (4th Cir. 1994). We do not reach these questions,
however, as Teran’s 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. Sandoval testified that Teran was a member of
MS-13. Beyond this, Teran willfully admitted to his cellmate
11
that he was a member of the gang. “The independent source
doctrine permits the introduction of evidence initially
discovered during, or as a result of, illegal government
conduct, but later obtained independently, from lawful
activities untainted by the initial illegality.” 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 district court’s
evidentiary rulings for abuse of discretion. United States v.
Johnson, 617 F.3d 286, 292 (4th Cir. 2010). Because we find no
abuse of discretion here, Appellants’ arguments can be
dispatched of summarily.
A.
Appellants assert that the district court erred in
admitting evidence of threatening text messages received by
12
Sandoval. They argue that the messages were irrelevant,
unauthenticated, and highly prejudicial.
The messages in question were undoubtedly relevant. Law
enforcement intercepted a letter from Teran stating he was
trying to prevent Sandoval from testifying at trial. It is
reasonable to infer that threatening text messages 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.” United States v. Vidacak, 553 F.3d 344, 349
(4th Cir. 2009) (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. A reasonable juror could infer that
the text messages were sent by Teran (or an associate), as
authentication only requires proof “sufficient to support a
finding that the item is what the proponent claims it is.” Fed.
R. Evid. 901(a). Finally, the text messages were highly
probative, as they corroborated the letters sent by Teran. The
district court did not abuse its discretion by admitting the
text messages.
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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. As our sister Circuit
wisely explained, admission of 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. See United States v. Boyd, 53 F.3d
631, 637 (4th Cir. 1995) (“[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 assessment that the
14
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, Teran makes a last-ditch attempt for reprieve,
arguing he should have been acquitted of his firearms
convictions under 18 U.S.C. § 924(c) (use 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. § 922(g)(5)(A) (illegal alien in possession of a
firearm). 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 the government may not have eyewitness testimony
placing the gun in Teran’s hands, there is 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 have followed Pinkerton in affirming convictions
for substantive offenses committed in the 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. “We will not [] disturb a jury
verdict ‘unless, without 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 court
harmless.
VI.
For the foregoing reasons, we affirm Appellants’
convictions on all seven counts.
AFFIRMED
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