                    UNITED STATES COURT OF APPEALS
                         For the Fifth Circuit



                              No. 91-7212



                      UNITED STATES OF AMERICA,

                                                   PLAINTIFF-APPELLEE,


                                VERSUS


                            LUIS MARTINEZ,

                                                   DEFENDANT-APPELLANT.




             Appeal from the United States District Court
               For the Southern District of Mississippi
                           (October 6, 1992)


Before REYNALDO G. GARZA, DAVIS and BARKSDALE, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:

     Appellant,    Luis   Martinez,   challenges   his   conviction   of

conspiracy to possess with intent to distribute 1.56 kilograms of

cocaine in violation of 21 U.S.C. 846.      Finding no reversible error

we AFFIRM.

                              Background

     On December 29, 1988 a Juan Castellanos used his credit card

to rent a car in Miami and designated his brother-in-law, Martinez,

as an authorized driver.    Martinez, together with his wife and two

children, proceeded to their destination, New Orleans. The vehicle
broke down in Daytona on December 30 and Martinez signed for a

replacement, a white Ford Tempo.            They arrived in New Orleans on

December 30   and    were   reunited       with   an   old-time    friend,   Juan

Peinado.   Martinez testified that he then gave the car to a Carlos

Sacerio on January 3rd to return to Miami by the 4th, the due date,

to avoid the drop-off fee.

     On January 6th, Mississippi State Highway Patrolman Howard

Potts stopped the vehicle in Gulfport for speeding as it was

heading west on Interstate 10 towards New Orleans.                The driver, an

Oscar Rubio, showed Potts the rental papers showing Martinez as an

authorized driver.    Rubio told the officer that he was delivering

the car to Luis Martinez in New Orleans.               He went on to say that

Martinez had spoken to him on the phone in Miami and had told Rubio

that he wanted to fly back to New Orleans.             Officer Potts impounded

the vehicle because Rubio's license was suspended and he wasn't an

authorized driver according to the rental papers in his possession.

Rubio consented to the vehicle being searched and actually fell

asleep during the wait.      At that time the search failed to reveal

anything suspicious and Rubio was driven to the Gulfport bus

station. The car's odometer indicated that the car had been driven

2,891 miles since Martinez initially got it in Daytona.                      The

mileage was consistent with testimony that the car was driven to

New Orleans, back to Miami and then again North through Florida and

then West to Gulfport, 60 miles outside of New Orleans.

     Rubio testified that he then called Martinez who instructed

him to proceed to New Orleans and that he would pay for his trip


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back to Miami.     Armand Baralt, an attorney from New Orleans,

testified that Martinez hired him at $60 an hour to help him get

the car back.   There was a meeting the next day, Saturday the 7th,

at the Howard Johnson's hotel in New Orleans that was attended by

Martinez, Peinado, Sacerio, Rubio and Baralt.     The situation was

discussed at length and Baralt proceeded to call Hertz using the

alias of Lee Collins to find out how to retrieve the vehicle.

Officer Potts had left instructions to be notified regarding any

inquiries for the vehicle.    Officer Potts ordered another search

when his suspicion was aroused and discovered 1.56 kilograms of

cocaine hidden in the car's steering column and dashboard.    After

several phone calls to Hertz over the weekend, the group decided to

go to the Gulfport office Sunday evening, January 8th, to reclaim

the Ford Tempo.

     Martinez, Peinado and Baralt arrived at the Gulfport Hertz

parking lot at 8:45 P.M., 15 minutes before closing.    They waited

for a few minutes before entering the office.   They walked past the

counter but returned quickly. Martinez testified that he wanted to

drive the car back to Miami to avoid a drop-off charge.   Narcotics

Agent Sandefer, posing as a Hertz employee, accompanied the trio to

the car in the parking lot.       Baralt walked to his car while

Martinez and Peinado went directly to the Ford Tempo.       At this

point all three men were placed under arrest.     Sacerio and Rubio

arrived a short time later and were also arrested.

     Baralt, Peinado, Sacerio and Rubio were tried together and,

all except for Baralt, were convicted of possession of cocaine and


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conspiracy to possess cocaine with the intent to distribute.

Sacerio and Rubio's convictions were subsequently overturned for

insufficiency      of   evidence    and       Peinado   has    not   appealed    his

conviction.       United States v. Sacerio, 952 F.2d 860 (5th Cir.

1992).   Martinez was tried separately on both counts and was found

guilty on the conspiracy charge.               He was sentenced to 97 months

imprisonment and 4 years supervised release.

                                   Analysis

     Martinez appeals his conviction on insufficiency of evidence

grounds.     The standard of review for sufficiency of evidence is

whether any reasonable trier of fact could have found that the

evidence established guilt beyond a reasonable doubt.                   Jackson v.

Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560

(1979); United States v. Anderson, 933 F.2d 1261, 1274 (5th Cir.

1991).     All    reasonable     inferences      from   the    evidence   must    be

construed in favor of the jury verdict.             Glasser v. United States,

315 U.S. 60, 80 (1942).        Determining the weight and credibility of

the evidence is within the sole province of the jury.                       United

States v. Pena, 949 F.2d 751, 756 (5th Cir. 1991).                   An appellate

court will not supplant the jury's determination of credibility

with that of its own.          United States v Barron, 707 F.2d 125, 127

(5th Cir. 1983).

     The   jury    in   this    case   chose      not   to    believe   Martinez's

testimony.       All of the evidence together meets the sufficiency

threshold to uphold the conviction.                 "Circumstances altogether

inconclusive, if separately considered, may, by their number and


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joint    operation,     especially        when     corroborated     by     moral

coincidences,    be   sufficient    to     constitute      conclusive    proof."

Coggeshall v. United States (The Slavers, Reindeer), 69 U.S. (2

Wall.) 383, 17 L.Ed 911, 914-15 (1865).               The government had to

prove   three   elements   to    convict    of    drug     conspiracy:   1)    the

existence of an agreement to possess with intent to distribute

cocaine,   2)    Martinez's     knowledge    of     that    agreement    and    3)

Martinez's voluntary participation. United States v. Alvarado, 898

F.2d 987, 992 (5th Cir. 1990).

     There was enough evidence to prove all three elements.                First

there was the rental agreement in Rubio's possession and Rubio's

testimony that he was supposed to deliver the car directly to

Martinez in New Orleans and that when Martinez had spoken to him on

the phone in Miami, Martinez had stated that he wanted to fly

instead of driving back.          Baralt, a defense witness and prior

attorney for Martinez, confirmed that indeed Martinez had told him

that he wanted to fly in from Miami and that he was expecting

delivery of the car in New Orleans.              This evidence together with

the discovery of 1.56 kilograms in Martinez's rented car and his

voluntary participation in the meeting with all of the parties and

his eagerness to pick up the car personally with the other four men

all support the three necessary elements. Martinez was involved in

an agreement with others to obtain a large quantity of cocaine with

the obvious intention to distribute and his involvement throughout

was voluntary.

     The rest of the facts and evidence also point to a drug


                                      5
conspiracy.    Rubio testified that he called Martinez immediately

after the vehicle was impounded and that Martinez asked if he had

been arrested and then instructed him to proceed to New Orleans and

that he would pay for his trip back to Miami.              There was no

testimony that Martinez had called Hertz to inquire whether his

rented car was delivered in Miami by the due date, January 4th, and

if not, to explain its delay.         Logically it would be expected, at

a minimum, that Martinez would do this or possibly even report the

car missing since he testified he had not seen or heard of the car

in 3 days.

       Baralt also testified that Martinez had hired him at $60 an

hour   to   assist   him    reclaim   the   car.   This   seems   like   an

overreaction for an innocent impoundment of a rental car due to its

use by an unauthorized driver.        Martinez's contention that he was

penniless is contradicted by the testimony that he quickly hired an

attorney, that he flew in from Miami and his promise to finance

Rubio's return trip.       Evidence that Martinez was well dressed when

arrested plus his apparent non-action regarding extra day charges

also weakens his argument.      Martinez claimed that his clothes were

lent to him by Peinado straight from his closet.                  This was

suspicious since Peinado is 5 inches taller and 35 pounds heavier.

       Further incriminating evidence was the meeting attended by

Martinez, Peinado, Baralt, Sacerio and Rubio.        Baralt stated that

the meeting took several hours.        All this effort by these 5 men is

hard to comprehend for just a simple innocent retrieval of a rented

Ford Tempo.   Baralt felt compelled to use an alias, Lee Collins, to


                                       6
obtain routine information on how to reclaim the impounded rental.

Further support for the drug conspiracy was the discovery of 22

grams of cocaine found out in the open on a nightstand in the hotel

room Martinez admitted meeting in.        "Although each element of the

conspiracy charge must be proved beyond a reasonable doubt, no

element need be proved by direct evidence, but may be inferred from

circumstantial   evidence.     An   agreement   may    be   inferred    from

`concert of action.'"    United States v. Espinoza-Seanez, 826 F.2d

526, 537 (5th Cir. 1988).        "Unlike many other conspiratorial

offenses, section 846 does not require proof of an overt act in

furtherance of the conspiracy."         United States v. Lechuga, 888

F.2d 1472, 1476 (5th Cir. 1989).

     The evidence regarding the attempted reclamation on Sunday

evening, January 8th, is also persuasive.       It is highly suspicious

that all five men, including a hired attorney, were needed or

interested in retrieving the vehicle, a supposedly straightforward

matter.   We note that the parties knew that the car was already

searched fruitlessly and obviously did not expect further searches.

It is also interesting that Martinez, Peinado and Baralt arrived 15

minutes before closing despite their admitted anxiety.                 Their

desire to reclaim the vehicle did not prevent them from waiting all

day Sunday, lingering in the parking lot for 3 to 4 minutes despite

the pending closing and when they entered the premises they did not

immediately   approach   the   counter.      Perhaps   they   lost     their

composure when they saw a male, officer Sandefer who was posing as

an employee, standing at the counter when Baralt had communicated


                                    7
with a female throughout the weekend.       Martinez, flashily dressed,

signed for the car so he could drive it back to Miami.          When they

were led to the parking lot both Martinez and Peinado immediately

approached the rental. Sacerio and Rubio showed up to this reunion

a short time later.

     The case against Sacerio and Rubio was considerably weaker

than the evidence presented against Martinez.       There was damaging

testimony against him given by several witnesses including Baralt,

who was a witness for the defense and also Martinez's own onetime

attorney.   Martinez took the witness stand in his defense but was

simply not believed given the persuasive evidence pointing to his

involvement   in   the   cocaine   conspiracy.    The   claim   that   the

introduction of a transcript of Rubio's previous testimony was

reversible error is rejected.       If this was error it was harmless

since Baralt testified to virtually the same facts.

                               Conclusion

     The evidence is sufficient for a reasonable trier of fact to

find beyond a reasonable doubt that Martinez voluntarily conspired

with others to possess cocaine with the intent to distribute.          For

the reasons stated above, the conviction and sentence of appellant

is in all respects

     AFFIRMED.




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