United States v. Martinez, William

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 16, 2006 Decided February 16, 2007

No. 06-3031

UNITED STATES OF AMERICA,

APPELLEE

v.

WILLIAM ELIU MARTINEZ,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 03cr00331-01)

John C. Belcher argued the cause and filed the briefs for

appellant.

Teresa A. Wallbaum, Appellate Counsel, U.S. Department

of Justice, argued the cause and filed the brief for appellee.

2

Before: GINSBURG, Chief Judge, and ROGERS and

KAVANAUGH, Circuit Judges.

Opinion for the Court filed by Circuit Judge KAVANAUGH.

KAVANAUGH, Circuit Judge: On March 16, 1999, in

Guatemala, U.S. Drug Enforcement Administration agents and

Guatemalan officials intercepted a land shipment of cocaine

from Colombia to the United States that was worth well over

$10 million. As a result of its investigation, the U.S.

Government later arrested and brought criminal charges against

William Eliu Martinez, a former government official from El

Salvador, for his involvement in this cocaine shipment. The

grand jury indictment charged Martinez with distributing

cocaine and conspiring to import cocaine into the United States.

After a jury trial in the District of Columbia, Martinez was

convicted and sentenced to 29 years in prison. Martinez appeals

his conviction; he challenges the admission of certain evidence

at trial, the sufficiency of the evidence supporting his

conviction, and the District Court’s jury instructions. Martinez’s

arguments are without merit, and we affirm.

I

Because this is an appeal from a conviction, we recount the

relevant facts in the light most favorable to the Government.

From the fall of 1998 until at least the summer of 2000, William

Martinez participated in a conspiracy to import cocaine from

Colombia into the United States. The co-conspirators shipped

the cocaine via the Pacific Ocean from Colombia to El

Salvador – and then transported the cocaine in trucks north from

El Salvador through Guatemala and Mexico into the United

States.

3

According to voluntary statements that Martinez provided

to Drug Enforcement Administration agents upon his arrest,

Martinez entered the cocaine conspiracy after contact with an

individual named Chino whom Martinez met when Martinez

lived in Houston, Texas, in the 1990s. After Martinez moved

back to El Salvador in 1998, Chino contacted Martinez about an

opportunity for Martinez to participate in a business operation

with several men from Guatemala – Otto Herrera, Guillermo

Herrera, and Byron Linares – who were part of an enterprise

referred to as the “Otto Herrera Drug Trafficking Organization.”

In the latter part of 1998, Martinez began participating in this

drug conspiracy; Martinez was aware that the business involved

international cocaine trafficking.

The evidence at trial demonstrated that Martinez supervised

several key aspects of the operation – including receiving

Colombian cocaine in El Salvador and helping to prepare the

cocaine for transportation north. In August 1998, for example,

Martinez purchased vessels known as “go-fast” boats that

traveled from the coast of El Salvador into the Pacific Ocean to

receive the cocaine from large vessels coming from Colombia.

In addition, Martinez rented several properties in El Salvador to

store the boats and to temporarily stash the cocaine until the

operation was ready to transport the cocaine north from El

Salvador. Martinez built high walls so that outsiders could not

see onto the property.

Martinez took steps to prevent local authorities in Central

America from discovering the operation. For instance, Martinez

attempted to ensure that vehicles transporting the cocaine within

El Salvador would not be detained by the police. On one

occasion, Martinez used his congressional position to intervene

when local law enforcement officers stopped a pick-up truck

towing one of Martinez’s boats.

4

Martinez recruited and paid individuals who on multiple

occasions used his boats to transport cocaine. According to

testimony of a man named Sabas and his father-in-law Revelo,

who were lower-level workers in the operation, Martinez

himself typically did not travel on the boats to obtain the

cocaine, but he did help unload it at the rental properties.

Martinez also oversaw the re-loading of the cocaine onto pick-

up trucks; those trucks in turn transported the cocaine to another

site where the cocaine was loaded onto larger trucks for north-

bound international transportation. During the unloading of the

cocaine from Martinez’s boats, Martinez regularly stood by with

a gun while supervising Sabas, Revelo, and others.

At trial, Sabas and Revelo (the two lower-level insiders)

recounted Martinez’s role with respect to the specific March

1999 cocaine shipment. While Martinez waited on land, Sabas

and several others traveled out into the Pacific Ocean to meet a

large vessel carrying the cocaine. Once Martinez’s boats

reached the larger vessel, individuals on that larger vessel tossed

the large black bales of cocaine onto the smaller boats. The

large bales each contained as many as 36 “bricks” of cocaine.

When the boats returned to shore, Martinez was waiting and

armed. Martinez helped remove the boats from the water and

covered them with a tarp for temporary storage. Martinez also

observed the re-loading of the cocaine onto pick-up trucks for

transportation to the site where three larger trucks waited to

transport the cocaine north. According to Sabas, Martinez told

Sabas that the bales contained cocaine. Martinez also warned

Sabas that Sabas and his family could be killed if Sabas told

anyone about the cocaine operation.

On March 16, 1999, the DEA and Guatemalan National

Police seized cocaine from the three large trucks transporting the

cocaine just after the trucks crossed the border from El Salvador

into Guatemala.

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The DEA and Guatemalan police conducted the March 16,

1999, seizure based on information that DEA officers received

from an informant named Lopez who was also involved with the

Herrera Organization. Three days earlier, Lopez began

providing information to the DEA about the Herrera

Organization’s transportation of cocaine from Colombia through

Nicaragua, El Salvador, Guatemala, and Mexico, and ultimately

to the United States. On March 16, Lopez informed the DEA

that the cocaine shipment would occur later that day. Lopez

indicated the trucks would be “traveling northbound on [the]

intercontinental highway that was the transit to Guatemala” and

“that traverses through the country of Guatemala towards

Mexico.” J.A. 594-95, 752 (Moren Testimony). During the

course of his conversations with the DEA, Lopez also stated that

the cocaine shipment was ultimately destined for the United

States.

Lopez’s information enabled the DEA and the Guatemalan

National Police to seize the shipment just after the trucks

crossed the border into Guatemala on the Pan-American

Highway. The three trucks contained a total of 2,556 kilograms

of cocaine. Each kilogram “brick” of cocaine was wrapped in

brown packaging tape, and some “bricks” were labeled with

logos, such as an American flag with an eagle or the words

“Mobil Super Plus.” (One of the Government’s witnesses,

former Agent Michael Garland, provided expert testimony that

drug traffickers use such logos to help give delivery instructions

to individuals distributing the cocaine.)

The day after the seizure, Lopez informed the DEA that

several individuals involved with the conspiracy had expressed

anger over the thwarted operation. Then on March 19, Lopez

told the DEA about the conspirators’ future plans to transport

more cocaine up through Guatemala and Mexico. A few days

later, Lopez was shot and killed in Guatemala City, Guatemala.

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(Because of Lopez’s unavailability at trial, Agent Daniel Moren,

one of the officers who recruited Lopez, testified about the

statements that Lopez provided to the DEA.)

The United States subsequently brought a two-count federal

grand jury indictment against Martinez and arrested him in

Central America. The counts in the indictment were:

(1) “conspiracy to knowingly and intentionally import five

kilograms or more of a mixture and substance containing a

detectable amount of cocaine . . . into the United States,” see 21

U.S.C. §§ 952(a), 960(a), and 963; and (2) “knowingly and

intentionally manufacturing or distributing five kilograms or

more of a mixture and substance containing a detectable amount

of cocaine . . . intending . . . or knowing that such substance

would be unlawfully imported into the United States,” see 21

U.S.C. § 959(a). J.A. 222 (Verdict Form). Following a nine-

day trial, a jury convicted Martinez of both counts.

II

On appeal, Martinez raises four main arguments. First,

Martinez challenges the admission of the hearsay statements of

Lopez, the deceased informant. Second, Martinez contests the

admission of Garland’s expert testimony that the United States

is the typical destination for Colombian cocaine transported

through Central America. Third, Martinez contends there was

insufficient evidence for a reasonable jury to find that Martinez

knew the destination of the cocaine shipment was the United

States. And fourth, Martinez argues that the jury instructions

were flawed.

7

A

Martinez contends that Lopez’s statements do not satisfy

the requirements of the Rule 804(b)(6) hearsay exception. He

also argues that admission of the statements violated the Sixth

Amendment’s Confrontation Clause.

1. The District Court admitted Lopez’s statements under

the hearsay exception in Rule 804(b)(6). That Rule allows

admission of hearsay statements made by an unavailable

declarant if the statements are “offered against a party that has

engaged or acquiesced in wrongdoing that was intended to, and

did, procure the unavailability of the declarant as a witness.”

The District Court concluded by a “preponderance of the

evidence” that the circumstances of Lopez’s death satisfied the

requirements of Rule 804(b)(6). See United States v. Carson,

455 F.3d 336, 362 (D.C. Cir. 2006). In particular, the District

Court concluded that Martinez’s co-conspirators murdered

Lopez to procure his unavailability as a witness and Martinez

was aware that his co-conspirators were willing to engage in

murder to protect the conspiracy. See United States v.

Thompson, 286 F.3d 950, 963-65 (7th Cir. 2002); United States

v. Cherry, 217 F.3d 811, 820-21 (10th Cir. 2000).

Martinez suggests that the evidence does not support the

conclusion that the Herrera Organization was responsible for

Lopez’s death. We review the District Court’s contrary factual

conclusion for clear error. Carson, 455 F.3d at 362. We agree

with the District Court that Martinez’s argument is

unpersuasive.

To begin with, as the District Court explained, Martinez’s

earlier threat to Sabas and Sabas’s family showed that Martinez

and his co-conspirators considered murder to be “a possible

8

sanction to protect the privacy of the conspiracy.” J.A. 636-38

(District Court determination of admissibility of Lopez’s

statements). In Lopez’s case, that tactic was employed. Lopez

was shot and killed within a few weeks of the seizure of 2,556

kilograms of cocaine that Martinez and the Herrera Organization

conspired to import into the United States. That cocaine would

have been worth well over $10 million if it had reached its final

destination. And Lopez was the informant who helped law

enforcement uncover the conspiracy.

Revelo was an insider, and he testified that he learned from

a man named Pedro (who worked closely with Martinez and the

Herrera Organization) that Lopez was killed by individuals

associated with the March 16th shipment. Pedro stated that the

shipment was “taken down” due to Lopez’s communication with

the police. J.A. 617-24 (Jorge Martinez Testimony), 638-41

(District Court admission of Pedro’s statements under co-

conspirator hearsay exception, Rule 801(d)(2)(E)).

To be sure, upon its initial investigation, the Guatemalan

National Police apparently believed that Lopez’s death might be

tied to an altercation between Lopez and several individuals

unrelated to the March 16th cocaine shipment, and the police

arrested four individuals on that ground. But Agent Moren

testified that he believed the Guatemalan police later released

those four individuals. In any event, given Pedro’s statements

and Sabas’s testimony, the District Court did not clearly err in

determining that the Herrera Organization was in fact

responsible for Lopez’s death for purposes of Rule 804(b)(6).

Even assuming Lopez was killed by the Herrera

Organization, Martinez argues that Lopez’s murder was not

“intended to” procure Lopez’s unavailability as a witness.

Instead, Martinez contends that the Herrera Organization would

have murdered Lopez to retaliate for the loss of the March 16th

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cocaine shipment. Martinez’s argument is based on a false

either-or dichotomy. It is surely reasonable to conclude that

anyone who murders an informant does so intending both to

exact revenge and to prevent the informant from disclosing

further information and testifying. See Carson, 455 F.3d at 360-

61 & n.21, 364 n.23. The two purposes often go hand-in-glove,

and this case is just another good example. Martinez’s argument

would have the perverse consequence, moreover, of allowing

criminals to murder informants and thereby prevent admission

of the informants’ statements – just so long as the criminal could

show that the intent was retaliation (which the criminal almost

always could do). The text of Rule 804(b)(6) does not support

such an absurd and dangerous principle.

2. Controlling Supreme Court precedent forecloses

Martinez’s related contention that the admission of evidence

under the “forfeiture by wrongdoing” hearsay exception could

nonetheless violate the Confrontation Clause. A defendant

forfeits the constitutional right to confront a witness “when,

through his misconduct, he causes the witness to be

unavailable.” Carson, 455 F.3d at 361-63 & n.22; see also

Davis v. Washington, 126 S. Ct. 2266, 2280 (2006) (“[O]ne who

obtains the absence of a witness by wrongdoing forfeits the

constitutional right to confrontation.”); Crawford v. Washington,

541 U.S. 36, 62 (2004) (“[T]he rule of forfeiture by wrongdoing

(which we accept) extinguishes confrontation claims on

essentially equitable grounds . . . .”).

B

Martinez raises three challenges to the District Court’s

admission under Federal Rule of Evidence 702 of former DEA

Agent Garland’s expert testimony. We review Martinez’s

challenges to Garland’s testimony for abuse of discretion. See

United States v. Mejia, 448 F.3d 436, 448 (D.C. Cir. 2006).

10

1. Expert testimony about the methods of drug

organizations is common in drug cases. Here, Garland testified

that the United States was the most likely destination of

Colombian cocaine transported through Central America.

Martinez argues that Garland’s expert testimony was

duplicative of other testimony and therefore could not have

assisted the trier of fact as required by Rule 702. Rule 702

provides: “If scientific, technical, or other specialized

knowledge will assist the trier of fact to understand the evidence

or to determine a fact in issue, a witness qualified as an

expert . . . may testify thereto in the form of an opinion or

otherwise . . . .” Garland’s expert testimony – that cocaine

transported from Colombia through Central America is almost

always headed to the United States – is entirely distinct from the

factual statements by other witnesses that Martinez cites as

duplicative. Expert testimony about general trafficking routes

does not duplicate factual testimony indicating that Martinez’s

particular conspiracy imported cocaine into the United States.

2. Martinez next contends that the Government failed to

provide a written pre-trial summary of the expert testimony.

That argument is factually inaccurate. Rule 16 of the Federal

Rules of Criminal Procedure requires that “[a]t the defendant’s

request, the government must give to the defendant a written

summary of any testimony that the government intends to use

under Rules 702, 703, or 705 of the Federal Rules of Evidence

during its case-in-chief at trial.” In this case, the Government

satisfied Rule 16 by indicating in writing approximately six

weeks before trial that Garland would testify about the method

of importing Colombian cocaine into the United States via

Central America. The Government provided that information in

its Opposition to Defendant’s Motion to Exclude Government’s

Expert Testimony and the affidavits by Garland submitted along

with the Opposition.

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3. Martinez also argues that Garland improperly provided

opinion testimony regarding Martinez’s specific knowledge that

the cocaine was headed to the United States. Martinez relies on

Rule of Evidence 704(b), which states: “No expert witness

testifying with respect to the mental state or condition of a

defendant in a criminal case may state an opinion or inference

as to whether the defendant did or did not have the mental state

or condition constituting an element of the crime charged . . . .”

But the record makes clear that Garland did not testify about

Martinez’s particular mental state. Garland answered the

“United States” in response to a question about where

Colombian cocaine transported north was “generally” headed –

not to a question about where Martinez thought the cocaine was

headed. This Court recently held that very similar testimony (by

the same expert witness Garland) about the methods of South

and Central American drug trafficking operations did not

include an improper opinion regarding the defendant’s mental

state under Rule 704(b); in that case, the District Court

immediately clarified Garland’s lack of personal knowledge of

the defendant’s mental state. See Mejia, 448 F.3d at 449 & n.9.

Here, Garland stated during cross-examination that he had no

personal knowledge of the Herrera Organization, thereby

mitigating any risk that his statement would be misinterpreted.

As in Mejia, “it is plain that Garland was testifying about drug

organizations in general” – not about Martinez in particular. Id.

C

Martinez contends that there was insufficient evidence for

a reasonable jury to conclude that he had knowledge or intent

regarding the U.S. destination of the cocaine, as required under

the distribution and conspiracy offenses with which Martinez

was charged. We will not reverse a jury conviction on

sufficiency grounds “unless, reviewing the evidence in the light

most favorable to the Government, a reasonable jury could not

12

have found guilt beyond a reasonable doubt.” United States v.

Chan Chun-Yin, 958 F.2d 440, 443 (D.C. Cir. 1992) (internal

quotation omitted); see also United States v. Gomez, 431 F.3d

818, 819 (D.C. Cir. 2005). In reviewing the evidence, we keep

in mind that proof of Martinez’s intent or knowledge “may take

the form of circumstantial as well as direct evidence.” Chan

Chun-Yin, 958 F.2d at 443; see also Mejia, 448 F.3d at 451.

The evidence plainly establishes that Martinez knew he was

involved in an international drug distribution conspiracy (with

the Herrera Organization). The evidence also establishes that

Martinez knew about the large and valuable March 1999 cocaine

shipment and was deeply involved in supervising its transport.

The evidence demonstrates that the Herrera Organization

transported drugs to the United States. The evidence further

shows that the March 1999 shipment was in fact headed to the

United States when it was intercepted on the Pan-American

Highway in Guatemala. Notwithstanding those facts, Martinez

argues that a reasonable jury could not find that Martinez knew

the United States was the destination of the cocaine that he

helped to transport. In light of the above facts alone, that is

obviously a very difficult argument for Martinez to maintain.

Moreover, a plethora of additional circumstantial evidence

further confirms a reasonable jury could find that Martinez had

the requisite knowledge of the U.S. destination of cocaine.

• Martinez personally and closely supervised many key

aspects of the international transportation of this massive

shipment of cocaine. He owned the boats that acquired the

Colombian cocaine from large ships in the Pacific Ocean and

transported the cocaine back to El Salvador. He hired and paid

the drivers of those boats and threatened one of those employees

with death if he told the police about Martinez’s operation. In

addition, Martinez oversaw the unloading of the cocaine at

properties in El Salvador, which Martinez had rented and

13

renovated to store the cocaine and hide it from public view.

Martinez also supervised the re-loading of the cocaine onto

pick-up trucks, which transported the cocaine to the trucks that

drove the cocaine into Guatemala. Given Martinez’s

supervisory role, it strains credulity to suggest he did not know

the United States was the ultimate destination.

• There is direct evidence that many of the lower-level

individuals involved with the March 16th shipment of cocaine

knew the cocaine was headed to the United States. For example,

Lopez, who drove one of the three trucks transporting the

cocaine seized on March 16 from the El Salvador-Guatemala

border to a storage site within Guatemala, knew that the co-

conspirators were transporting the cocaine to the United States.

Lopez also informed the DEA that five other lower-level

participants knew the shipment was going to the United States.

If lower-level participants in the operation knew that the United

States was the destination of the cocaine, it certainly stands to

reason that a hands-on supervisor such as Martinez also knew as

much.

• Martinez oversaw the unloading of the cocaine from his

boats and the re-loading of the cocaine onto pick-up trucks for

eventual international transportation. Martinez’s role in the

operation provided him with many opportunities to see the

cocaine “bricks” – and at least one delivery logo used on the

cocaine seized on March 16 was visibly related to the United

States, as it included an American flag and eagle. (Garland

testified about the practice of drug conspiracies transporting

“bricks” of cocaine packaged with logos that communicate

delivery instructions; and some of the cocaine seized on March

16 bore the same logos as cocaine later discovered in the United

States.)

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• Martinez had reason to know that the organization

generally transported cocaine into the United States because

Martinez learned of the conspiracy from Chino when both

Martinez and Chino lived in the United States.

• Former DEA Agent Garland testified based on his

extensive experience that almost every drug operation that

transports Colombian cocaine by land through Central America

intends to import the cocaine into the United States. Moreover,

according to Garland, the Pan-American Highway is the typical

route used by drug traffickers who transport drugs through

Central America. That highway is the route the three trucks

were traveling when law enforcement seized the Herrera

Organization’s cocaine in Guatemala on March 16, 1999. In

general, only organizations intending to import cocaine into the

United States would have reason to transport cocaine north via

the Pan-American Highway. As Garland explained, those who

transport Colombian cocaine from Colombia to overseas

destinations, such as Europe or Australia, do not ordinarily first

ship it by land through Central America because there is no

logical reason to do so. Nor, Garland indicated, would

Guatemala or Mexico be the likely destination of Colombian

cocaine shipped north from El Salvador by land, because the

sales price of cocaine (and thus the profits of the drug trafficking

organization) increase dramatically when the drugs are sold in

the United States. This expert testimony suggests that a

sophisticated drug trafficker like Martinez would be well aware

that drugs moving north on the Pan-American Highway – as this

shipment was – were destined for the United States.

The evidence regarding Martinez’s intent and knowledge

about the U.S. destination of the cocaine was plenty sufficient

for a reasonable jury to convict, especially when considered in

light of decisions in this and other circuits examining the mens

rea requirements of these statutes. See, e.g., Mejia, 448 F.3d at

15

451-52, 459; Chan Chun-Yin, 958 F.2d at 443-44; United States

v. Bollinger, 796 F.2d 1394, 1405 (11th Cir. 1986); United

States v. Bascaro, 742 F.2d 1335, 1360 (11th Cir. 1984); United

States v. Conroy, 589 F.2d 1258, 1269-71 (5th Cir. 1979).

Martinez relies heavily on United States v. Londono-Villa,

930 F.2d 994 (2d Cir. 1991). The Second Circuit in Londono-

Villa overturned a jury verdict based on insufficient evidence of

the defendant’s intent regarding the U.S. importation of cocaine.

930 F.2d at 1001. Three aspects of Londono-Villa, however,

make that case quite different from this one. First, the defendant

in Londono-Villa had a much smaller role in the operation that

imported cocaine to the United States than the multi-faceted

supervisory role Martinez played in this conspiracy – meaning

there was less basis to conclude that the defendant in Londono-

Villa necessarily would have known of the conspiracy’s basic

methods and objectives. See id. at 995-96. Unlike Martinez’s

supervisory role, the defendant in Londono-Villa flew from

Panama to Colombia simply to guide the pilot to a particular

Colombian airstrip, and he worked for a different organization

than the conspirators who trafficked the cocaine. See id.

Second, the defendant in Londono-Villa became involved

only at the end of the cocaine operation. Id. at 1001. By

contrast, Martinez helped to lay the groundwork for significant

portions of international cocaine shipments – acquiring boats,

hiring employees, and renting and renovating properties to help

store the cocaine. Therefore, it was entirely reasonable for the

jury in Martinez’s case to conclude that his participation in

many phases of the cocaine operation showed his knowledge

that the ultimate objective of the operation was to import

cocaine into the United States.

Third, unlike Martinez’s awareness of his cocaine’s

transportation from Colombia through Central America, the

16

Londono-Villa defendant’s awareness that the conspiracy

transported drugs from Colombia to Panama would not

necessarily have informed the defendant that the cocaine was

headed to the United States. That is because Panama (which is

contiguous with Colombia) is apparently sometimes used as an

intermediate shipping point for drugs imported into countries

other than the United States. See id. at 996. By contrast, in this

case, the evidence showed that the “likelihood is extremely

remote” that any Colombian cocaine transported north-bound

along the highways of El Salvador and Guatemala would be

destined for a location other than the United States. J.A. 818-21

(Garland Testimony).

Martinez also cites United States v. Samad, 754 F.2d 1091

(4th Cir. 1984). That case has no relevance here. Because the

defendants in Samad were in the United States when they

illegally received heroin, the evidentiary issue concerned

whether the defendants knowingly received drugs – not whether

defendants who knowingly transported drugs also knew the

drugs’ ultimate destination. See id. at 1096-99.

D

Martinez challenges the District Court’s instructions to the

jury. Because Martinez failed to object at trial to the jury

instructions, we review these arguments for plain error. See

Fed. R. Crim. P. 52(b).

1. Martinez contends that the jury instructions regarding

the distribution charge against Martinez were “improper and

confusing” because the District Court one time referred to the

offense as “distribution of a controlled substance” rather than

“distribution of a controlled substance knowing or intending that

it would be imported into the United States.” Appellant’s Br. at

58-60 (internal quotations omitted). According to Martinez, the

17

characterization of a crime of “distribution” was especially

problematic because the requirement of U.S. importation is the

aspect of Martinez’s distribution conviction that Martinez is

challenging.

To begin with, the District Court’s one-time identification

of the offense as “distribution of a controlled substance” was

accurate because that description merely restated the title of the

offense as it appears in Section 959 of Title 21 of the U.S. Code.

Moreover, the district judge repeatedly told the jurors the charge

of distributing cocaine required that Martinez know or intend

that the cocaine would be imported into the United States.

Indeed, on no less than six occasions, the District Court

characterized the distribution offense as a crime involving

knowledge or intent regarding U.S. importation.

The district judge’s repeated instructions that a distribution

conviction requires proof of knowledge or intent regarding U.S.

importation clearly sufficed to inform the jury of the elements

of the offense. Joy v. Bell Helicopter Textron, Inc., 999 F.2d

549, 556 (D.C. Cir. 1993).

2. Martinez next argues that the District Court failed to

adequately respond to a jury note asking whether the conspiracy

count required proof that Martinez knew about every unlawful

objective of his co-conspirators, including the U.S. importation

of the cocaine. In particular, the jury note asked the District

Court to clarify an apparent inconsistency between the verdict

form and the jury instructions received prior to jury

deliberations. The verdict form indicated that conviction

required knowledge or intent regarding U.S. importation, but the

jury instructions at one point stated: “Furthermore, a defendant

need not have been informed of the full scope of the conspiracy,

nor need he be shown to have joined in all of the conspiracy’s

unlawful objectives in order for you to infer that he joined the

18

conspiracy knowingly.” J.A. 937 (Jury Instructions). In

response to the note, the District Court clarified that conviction

of the conspiracy charge required proof of Martinez’s

knowledge or intent regarding U.S. importation. The District

Court also directed the jury to an earlier page of the jury

instructions, which described the knowledge or intent

requirement for Martinez’s conviction.

Martinez contends that the District Court’s response was

inadequate because it merely referred jurors back to the portion

of the instructions that had confused them. But the District

Court did not refer the jury back to the instructions about

conspiracy that prompted the jury question; instead the judge

referred the jury (correctly) to an entirely different segment of

the instructions regarding the intent and knowledge requirement.

In other words, the District Court resolved the question in a way

favorable to Martinez. That is no doubt why Martinez’s trial

counsel did not object to the District Court’s response to the

question from the jury.

***

The judgment of conviction is affirmed.

So ordered.