     Case: 09-50206     Document: 00511066456          Page: 1    Date Filed: 03/30/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                           March 30, 2010
                                     No. 09-50206
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

CESAR GERARDO MARTINEZ-SAAVEDRA,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:07-CR-410-1


Before GARWOOD, SMITH and STEWART, Circuit Judges.
PER CURIAM:*
        Cesar Gerardo Martinez-Saavedra (Martinez) appeals his convictions of
conspiracy to possess with intent to distribute, conspiracy to import, possession
with intent to distribute, and importation of more than five kilograms of cocaine.
Martinez was arrested and charged after his minivan was found, at the Del Rio,
Texas port of entry, to contain more than 12 kilograms of cocaine concealed
under the dashboard.



        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                 No. 09-50206

      Martinez contends that the court abused its discretion by refusing to admit
an out-of-court statement by a federal agent indicating that the agent believed
Martinez’s story that he was transporting the cocaine under duress applied by
a person named Fausto who said he would have Martinez’s family killed if
Martinez did not cooperate. We review the district court’s ruling for abuse of
discretion. United States v. Ragsdale, 426 F.3d 765, 774 (5th Cir. 2005).
      Martinez admitted that the agent was available to be called as a defense
witness but was not called by either party. There is nothing to indicate that the
agent’s belief was based on anything other than his having heard Martinez so
state when questioned by other agents at the Del Rio port of entry after the
cocaine was found. Martinez argues that the agent’s statement was not hearsay
because it was an admission by a party under F ED. R. E VID. 801(d)(2)(D). We
have previously declined to apply Rule 801(d)(2)(D) to a statement made by a
government agent because the statements of individual agents do not bind the
sovereign except in rare circumstances. See United States v. Garza, 448 F.3d
294, 298-99 & nn.14-16 (5th Cir. 2006). The district court did not abuse its
discretion by refusing to admit the agent’s out-of-court statement. See Ragsdale,
426 F.3d at 774.
      Further, any error in excluding the statement would be harmless.        Even
if Martinez could overcome the hearsay hurdles, the testimony would still be
inadmissible on other grounds. See Viazis v. Am. Ass’n of Orthodontists, 314
F.3d 758, 767 (5th Cir. 2002). Here, the agent’s beliefs are inadmissible opinion
testimony.   Lay opinions must be “helpful to a clear understanding of the
witness’ testimony or the determination of a fact in issue.” F ED. R. E VID. 701(b).
The agent’s belief was unlikely to aid the jury in making credibility
determinations. In fact, Martinez took the stand. The jury was able to make its
own credibility determination. The advisory committee notes to Rule 701 state,
“[i]f . . . attempts are made to introduce meaningless assertions which amount
to little more than choosing up sides, exclusion for lack of helpfulness is called

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                                 No. 09-50206

for by the rule.” Id. advisory committee’s note. Further, Martinez failed to
proffer evidence that the agent’s opinion was rationally based on the perception
of the witness. F ED. R. E VID. 701(a). For example, in United States v. Dotson,
the question of 701’s rational basis requirement arose in the context of a lay
opinion given under Rule 608(a). 799 F.2d 189 (5th Cir. 1986). In that context,
we said that conducting an investigation of the defendant, knowing the
defendant, or having minimal contact with the defendant’s witnesses is not
sufficient to opine that the defendant’s witnesses were liars. Id. at 193–94.
Likewise, the defendant may not offer opinion testimony of his veracity from a
source that lacks a sufficient factual basis.
      Martinez next contends that the evidence was insufficient to show that he
knew there was cocaine in his minivan. We review the sufficiency of evidence
narrowly. United States v. Moreno, 185 F.3d 465, 471 (5th Cir. 1999). We will
affirm the conviction if, after viewing the evidence, the reasonable inferences
therefrom, and all credibility determinations in favor of the verdict, we conclude
that a rational jury could have found that the Government proved the necessary
elements of the crime. Id.; see Jackson v. Virginia, 443 U.S. 307, 319 (1979).
      The evidence supported the finding of Martinez’s guilty knowledge.
Martinez claimed ownership of the minivan, and a latched opening allowed for
easy and repeated access to the hidden compartment. Cf. Moreno, 185 F.3d at
472 & n.3; United States v. Ortega-Reyna, 148 F.3d 540, 542-44 (5th Cir. 1998).
Martinez became nervous when investigators examined the dashboard. The jury
was also entitled to infer Martinez’s knowledge because the evidence showed
that the cocaine was worth between $840,000 and $1.3 million, and such a
valuable quantity of cocaine would not be entrusted to an unknowing stranger.
See United States v. Villareal, 324 F.3d 319, 324 (5th Cir. 2003) (approving
inference of knowledge based on high value of drugs). In addition, Martinez
gave inconsistent or implausible statements to federal agents about the purpose
of his trip; the role and knowledge of his passenger, Jacobo Alba-Barba; and his

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                                No. 09-50206

(Martinez’s) asserted belief that he was carrying only money for exchange. A
federal agent also testified that Martinez admitted carrying “something bad” and
that Martinez said he thought he was going to get paid for the border crossing.
Further, the jury was free both to infer that Martinez knew Fausto had placed
drugs in the minivan and to reject his story that he acted under duress. See
United States v. Estrada-Fernandez,150 F.3d 491, 496 n.3 (5th Cir. 1998) (noting
that a jury may reject all or part of a defendant’s account of the crime).
      Finally, Martinez argues (as his sole remaining contention on appeal) that
the Government failed to disprove his assertion that he was acting under duress.
The burden was on Martinez to prove duress; the Government had no burden to
disprove it. See Dixon v. United States, 548 U.S. 1, 13-17 (2006). The jury was
free to discount Martinez’s version of the events and to reject his testimony that
he transported the cocaine only because his family had been threatened. See
Moreno, 185 F.3d at 471. In addition, the Government presented evidence that
Martinez felt he would be safe in Mexico and that he and his family had traveled
freely to the United States after being threatened.
      Martinez shows no reversible error.      The district court’s judgment is
AFFIRMED.




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