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UNITED STATES v. MARTINEZ

March 7, 1994

UNITED STATES OF AMERICA,
v.
OSVALDO MARTINEZ, Defendant.



The opinion of the court was delivered by: SHIRLEY WOHL KRAM

 SHIRLEY WOHL KRAM, U.S.D.J.

 Defendant Osvaldo Martinez ("Martinez") was charged in a two-count Indictment with conspiracy to possess a quantity of cocaine with intent to distribute, in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(B), and failure to appear, in violation of 18 U.S.C. §§ 3146(a)(1) and 3146(b)(1)(A)(i). On November 1, 1993, he pled guilty to the failure-to-appear charge. Thereafter, on November 9, 1993, a jury convicted Martinez of narcotics conspiracy. Martinez now moves for a judgment of acquittal, or in the alternative, for a new trial. For the reasons set forth below, Martinez's motion is denied.

 BACKGROUND

 I. The Government's Case-In-Chief

 On July 20, 1992, Sandler spoke by telephone with the CI, Joseph, and agreed to sell him cocaine and several firearms. Sandler knew Joseph from prior occasions in which he had sold Joseph both weapons and narcotics. Thereafter, on September 14, 1992, Sandler called Joseph from Baltimore, Maryland, where he had been placed on probation after pleading guilty to a state narcotics charge. He offered to sell Joseph one kilogram of cocaine for $ 25,000 and various firearms. They agreed to meet at Grant Avenue and 165th Street, Bronx, New York (the "Grant Avenue vicinity") on September 17, 1992, to effectuate the narcotics transaction (the "September 17th Transaction").

 Between September 14 and September 17, 1992, Sandler contacted several sources to obtain the cocaine and firearms, including Nestor Cabrera ("Cabrera"). Sandler told Cabrera to contact his own source for the cocaine, but Cabrera never told Sandler the name of his source.

 On September 17, 1992, the CI, Joseph, arrived at the Grant Avenue vicinity with undercover Agent Reid. Sandler, Cabrera and Sandler's wife met Joseph and Agent Reid, and told them that they did not have the narcotics. Joseph and Agent Reid therefore arranged to meet Sandler and Cabrera later that night. During this initial meeting, Cabrera made several calls on a cellular telephone.

 Later that evening, Joseph and Agent Reid arrived at the Grant Avenue vicinity a second time to conclude the deal. Sandler and Cabrera were not able to provide the narcotics at this meeting either, although Cabrera made additional calls on his cellular telephone. Sandler asked Joseph and Agent Reid to travel to another location where the cocaine would be produced, but Joseph and Agent Reid declined to do so. Cabrera then told Sandler that he would attempt to persuade his source to come to the Grant Avenue vicinity, and Joseph and Agent Reid left the area. Cabrera also left the location.

 That same night, Joseph and Agent Reid again returned to the Grant Avenue vicinity to meet Sandler. By then, Cabrera had also returned, accompanied by Martinez and an individual named Jose Cristobal ("Cristobal"). Sandler was introduced to Martinez as the source of the cocaine, and Martinez told Sandler that initially he had been reluctant to conduct the deal on the street. Martinez asked Sandler whether he knew the customer and had seen the buy money, and Sandler replied affirmatively.

 When Joseph and Agent Reid arrived, Sandler approached them and told them that he now possessed the narcotics. Sandler then introduced Joseph to Martinez and Cristobal, and stated that "these were the guys with the cocaine." Tr. at 163. Joseph and Cristobal began walking up 165th Street towards the Grand Concourse, with Cristobal and Martinez following. Sandler and Agent Reid remained behind with the purported purchase money.

 As they walked, Cabrera spotted one of the ATF surveillance cars. Cabrera said, "policia," and the group halted. Martinez told the group to wait for approximately five minutes. After the car drove away, Martinez instructed the group to proceed. At the end of the block, Martinez and Cristobal remained behind while Joseph and Cabrera crossed the street and went inside Cabrera's blue Oldsmobile. Inside the car, Cabrera produced a package containing a substance later identified as cocaine. After Joseph approved of the narcotics, Cabrera asked to see the purchase money.

 Joseph and Cabrera then returned to the corner where Martinez and Cristobal were waiting. Martinez asked if Joseph was satisfied and Joseph replied affirmatively. Martinez and Joseph then discussed the possibility of doing future business together. *fn1" The group arrived at the Grant Avenue vicinity, whereupon Sandler, Cabrera, Cristobal and Martinez were arrested. *fn2" After the arrest, ATF agents found a kilogram of cocaine in Cabrera's blue Oldsmobile. ATF agents also found Martinez's car parked immediately behind Cabrera's car.

 At trial, the Government presented evidence of Martinez's failure to appear at a hearing before this Court on December 9, 1992, and his use of an alias when re-arrested on February 3, 1993. In addition, the Government presented evidence of the defendant's 1989 conviction in the state of Virginia for narcotics conspiracy.

 II. The Defense

 During cross-examination, Martinez emphasized that the Government did not produce any physical evidence to corroborate the testimony of its witnesses. Thus, according to the Government's witnesses, Martinez's fingerprints were not matched with the latent prints discovered on the packages of cocaine. Furthermore, despite knowing Sandler's beeper number as early as July 20, 1992, the Government did not attempt to "clone" his beeper, or obtain records relating to the beeper. No physical surveillance was conducted of Sandler's activities between September 14 and September 17, 1992, nor was any attempt made to obtain telephone records of ...


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