United States v. Rafael A. Martinez A/K/A Victor Martinez, Jose Tineo, Florencio Herpin, A/K/A Papo, and Arnaldo Garcia, A/K/A Naldo, A/K/A Nardo

165 F.3d 34, 1998 U.S. App. LEXIS 36103
CourtCourt of Appeals for the Seventh Circuit
DecidedSeptember 1, 1998
Docket97-1266
StatusUnpublished

This text of 165 F.3d 34 (United States v. Rafael A. Martinez A/K/A Victor Martinez, Jose Tineo, Florencio Herpin, A/K/A Papo, and Arnaldo Garcia, A/K/A Naldo, A/K/A Nardo) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Rafael A. Martinez A/K/A Victor Martinez, Jose Tineo, Florencio Herpin, A/K/A Papo, and Arnaldo Garcia, A/K/A Naldo, A/K/A Nardo, 165 F.3d 34, 1998 U.S. App. LEXIS 36103 (7th Cir. 1998).

Opinion

165 F.3d 34

NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
Rafael A. MARTINEZ a/k/a Victor Martinez, Jose Tineo,
Florencio Herpin, a/k/a Papo, and Arnaldo Garcia,
a/k/a Naldo, a/k/a Nardo, Defendants-Appellants.

Nos. 96-4159, 97-1297, 97-1266, 97-1582.

United States Court of Appeals, Seventh Circuit.

Argued May 20, 1998.
Decided Sept. 1, 1998.

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 96 CR 58. Thomas J. Curran, Judge.

Before Hon. WALTER J. CUMMINGS, Hon. DANIEL A. MANION, Hon. ILANA DIAMOND ROVNER, Circuit Judges.

ORDER

Rafael Martinez, Arnaldo Garcia, Jose Tineo, and Florencio Herpin operated a cocaine distribution organization in Milwaukee, Wisconsin between 1992 and 1994. Eventually, all four were indicted and convicted on various counts in the indictment, most notably conspiracy to possess with intent to distribute cocaine. On appeal, they raise many arguments to challenge their convictions and sentences, but none have merit and we affirm.

I.

Martinez was the leader of a drug conspiracy in Milwaukee, Wisconsin. It was a full-service operation. He employed drug couriers who brought in cocaine from Chicago, New York, and elsewhere; crack "cookers" who transformed cocaine into crack cocaine for sale to individual users; salesmen; and security personnel. He ran at least twelve drug houses, and also sold drugs from the V & M Garage, where he operated a legitimate auto repair business.

Tineo acted as Martinez's right-hand man. He sometimes would accompany Martinez when Martinez was delivering cocaine to sellers; he also took Martinez's role in negotiating the purchase of cocaine from other suppliers. Herpin also negotiated the purchase of cocaine from suppliers. Garcia frequently went to Chicago to pick up cocaine to supply the conspiracy. He would generally pick up at least one kilogram of cocaine, paying in cash.

Eventually all four were charged in a single indictment. Garcia's trial was severed from the others due to a conflict of interest involving his attorney, and new counsel was appointed for Garcia. In September, 1996, Martinez, Tineo and Herpin were tried to a jury and convicted of conspiracy to possess with intent to distribute cocaine. Martinez was also convicted of one count of possession with intent to distribute cocaine, and Tineo was convicted of two counts of possession with intent to distribute cocaine. Martinez was sentenced to life imprisonment; Tineo, to 152 months' imprisonment; and Herpin, to 170 months' imprisonment. Two months later, Garcia was tried to the bench and convicted on one count of conspiracy to possess with intent to distribute cocaine, and six counts of possession with intent to distribute. He was sentenced to 188 months.

II.

The defendants make several arguments on appeal. Tineo claims that the district court improperly denied his motion to suppress evidence seized during a consensual search of a hotel room. Tineo, joined by Herpin, challenges the admission of testimony by Kevin Brown. Tineo, Herpin and Martinez argue that improper, prejudicial comments made by two witnesses, Raymond Smith and Elizabeth Diaz, denied them a fair trial. Herpin also claims the evidence was insufficient to convict him. And finally, Martinez, Garcia and Herpin challenge their sentences.

A. Tineo's Suppression Motion

Tineo contends that evidence seized in a South Milwaukee hotel room should have been suppressed by the district court because the police officers exceeded the scope of the consent to search. On September 15, 1993, Milwaukee Police Officer John Edwards and two other officers knocked on the door of Room 214 of the Exel Inn in Oak Creek, Wisconsin, a suburb of Milwaukee. Jeremy Clemente opened the door and Edwards asked Clemente if he could search the room for narcotics or drug paraphernalia. Clemente agreed, and the officers found a scale in an open box near a coat rack. Officer Edwards then opened a dresser drawer and found a package of sandwich baggies (used by drug dealers for packaging individual amounts of drugs). During the search, Clemente, Tineo, and a third man were sitting on the right side of one of the two beds in the motel room. Officer Edwards, upon finding the sandwich baggies, explained that voluntarily turning over any narcotics in the room would be in their best interests. No one responded, and Officer Edwards asked the men to move to the other side of the bed. Another officer then lifted up the right side of the bed and discovered narcotics. Officer Edwards immediately arrested all three men, and then continued to search the room; he also discovered cocaine under the other bed. At least, this is how Officer Edwards described the search during the suppression hearing. Tineo asserts that the officers merely asked to check the room, and Clemente did not consent to a search of the room for narcotics. The district court credited the testimony of Officer Edwards over the conflicting testimony of Clemente and Tineo, and refused to suppress the evidence seized in the motel room.

The "Fourth Amendment's general prohibition against the warrantless search of a person's property [does] not apply when the 'search [is] conducted pursuant to a valid consent." ' Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). "We review the district court's findings of fact after a suppression hearing for clear error, while reviewing conclusions of law and mixed questions of law and fact de novo." United States v. Meyer, No. 96-4230, 1998 WL 334456 at * 11 (7th Cir. June 23, 1998). Thus, our review of the district court's determination that a search is consensual is deferential to the extent that it turns on a question of fact. United States v. Yusuff, 96 F.3d 982, 986 (7th Cir.1996). A third party with common authority over the premises sought to be searched may provide such valid consent. United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). The scope of the consent to search is generally determined by what the officers are searching for. United States v. Saadeh, 61 F.3d 510, 518 (7th Cir.1995) ("We first must determine the scope of [the defendant's] initial consent. The scope of a search generally is characterized by its expressed object.") (citations omitted). In assessing the reasonableness of the scope of the search in relation to the consent given, the district court may consider the contemporaneous failure to object to the search. United States v. Maldonado, 38 F.3d 936, 940 (7th Cir.1994).

The district court was entitled to believe Officer Edwards' testimony that he asked to search the room specifically for narcotics.

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165 F.3d 34, 1998 U.S. App. LEXIS 36103, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-rafael-a-martinez-aka-victor-marti-ca7-1998.