                               UNPUBLISHED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Affirmed by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.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

                                                4
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


                                                       7
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.




                                               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.                        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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