United States v. Ortiz, 1st Cir. (1994)

7/26/2019 United States v. Ortiz, 1st Cir. (1994)

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USCA1 Opinion

United States Court of Appeals United States Court of Appeals For the First Circuit For the First Circuit

____________________

No. 93-1350

UNITED STATES,

Appellee,

v.

FREDERICK FERMIN ORTIZ,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Edward F. Harrington, U.S. District Judge] ___________________

____________________

Before

Selya, Circuit Judge, _____________ Bownes, Senior Circuit Judge, ____________________ and Stahl, Circuit Judge. _____________

____________________



Barry P. Wilson for appellant. _______________ Geoffrey E. Hobart, Assistant United States Attorney, wit

___________________ Donald K. Stern, United States Attorney, and R. Bradford

_________________ ____________ Assistant United States Attorney, were on brief for appellee.

____________________

May 5, 1994 ____________________

STAHL, Circuit Judge. In this appeal, defendan STAHL, Circuit Judge. _____________

appellant Frederick Fermin Ortiz challenges, on a variety

grounds, his convictions and sentence for conspiracy

possess cocaine with intent to distribute and for possessi

of cocaine with intent to distribute. After careful

considering defendant's arguments, we affirm.

I. I. __

BACKGROUND AND PRIOR PROCEEDINGS



BACKGROUND AND PRIOR PROCEEDINGS ________________________________

As is always the case when considering a crimin

defendant's challenge to his/her conviction, we interpret t

record in a light most amenable to the government. Se

_

e.g., United States v. Ortiz, 966 F.2d 707, 710 (1st Ci ____ _____________ _____

1992), cert. denied, 113 S. Ct. 1005 (1993). _____ ______

On February 4, 1992, several federal and local l

enforcement agents, acting in response to a tip from

reliable informant, were conducting surveillance of a singl

family house located at 25 Glen Ellen Road in Lowel

Massachusetts. These agents observed defendant, along wi

codefendants Walter DeJesus Zapata ("Zapata") and Willi

DeJesus Escobar-Vegara ("Escobar")1 (and several ot

individuals), moving casually in and around this house a

its garage. A Ford Taurus was parked in the garage with i

____________________

1. The trial record reflects, and defendant's couns confirmed at oral argument, that contrary to the mo

prevalent Hispanic custom, defendant and his codefendan prefer that the last of their given names be used

surnames.

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hood and doors open. Although the agents at one point s

Zapata and Escobar enter the Taurus and begin tugging at t

vehicle's back seat, at no time did they see anyone actual

doing any work under the car's hood.

At approximately 2:00 p.m., a second vehic

occupied by two unidentified males pulled into the drivewa

A group of individuals including defendant, Escobar, a

Zapata approached the vehicle's passenger side (with Escob

in the lead). Escobar then engaged the passenger of t

vehicle in conversation. After several minutes

conversation, the unidentified passenger handed Escobar

key, which Escobar placed into his pocket.

Shortly thereafter, defendant, Escobar, and Zapa

entered a blue station wagon parked in front of the house a

drove away. Defendant was the driver. One of t

surveilling agents followed this vehicle to a condomini

located at 77 Acton Road in Lowell, and took up a seco

surveillance position about twenty yards from t

condominium's entrance. From this position, he obser

Escobar use a key to unlock the front door. All three

then proceeded inside.

Several minutes later, the surveilling age

observed defendant exit the same front door, approach t

blue station wagon, remove a child safety restraint seat fr



the wagon, and carry it over to a blue Monte Carlo parked

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the condominium's driveway. He unlocked the car door, plac

the child's seat into the back seat, and then reentered

Acton Road.

A few moments later, defendant and Zapata aga

exited the condominium. Each man was carrying a large, bla

travel bag which appeared heavy to the surveilling agen

They opened the trunk of the Monte Carlo, placed the two ba

inside, closed the trunk, and reentered the condominium.

few minutes later, Zapata exited the residence, entered t

Monte Carlo, and drove away. Subsequently, Zapata

approached by law enforcement officials at a rest area o

Route 128 in Newton, Massachusetts, and was asked f

permission to search the Monte Carlo. Zapata consented

the search, which revealed that the two black bags he a

defendant had placed into the trunk contained 25 kilograms

cocaine. Zapata then was placed under arrest.2

arresting officer testified that one of the two black ba



was unzipped 4-6 inches at the time of the consensual searc

and that, through this 4-6 inch opening, he could plainly s

brown and yellow taped bundles which, in his experienc

typically are used to package kilogram quantities of cocain

Later that same day, search warrants were execut

at both 25 Glen Ellen Road and 77 Acton Road. The search

____________________

2. The details of Zapata's arrest are set forth in great detail in United States v. Zapata, No. 93-1349, slip op.

_____________ ______ 2-4 (1st Cir. March 24, 1994).

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77 Acton Road turned up a variety of drug paraphernalia (no

of which was in plain view), drug packaging (all of which

found in the garbage), and an electric bill for the premis

in the name of Thomas Alvarez. It turned out that the bl

station wagon defendant drove from 25 Glen Ellen Road to

Acton Road also was registered to the same Thomas Alvarez.

At the time the search warrant was execute

Escobar was found watching television at 77 Acton Road, b



defendant was not present at that location. Defenda

eventually was arrested at 25 Glen Ellen Road. Immediate

after his arrest, defendant told the police that he was

cleaner, and that he lived on Beacon Street in Lawrenc

Massachusetts. Later, however, during booking, he stat

that he was a mechanic and lived on Haverhill Street

Lawrence. At the time of his arrest, defendant did not ha

any engine grease or oil on his hands.

On February 26, 1992, a grand jury returned a t

count indictment charging defendant, Escobar, and Zapata wi

(1) conspiring to possess with intent distribute, and (

possessing with intent to distribute (as well as aiding a

abetting the possession of) five or more kilograms

cocaine. See 21 U.S.C. 846, 841(a)(1); see also 18 U.S. ___ ___ ____

2. Trial commenced on October 19, 1992. On October 2

1992, at the conclusion of the government's case, t

district court granted Escobar's motion for judgment

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acquittal made pursuant to Fed. R. Crim. P. 29(a); howeve

it denied a similar motion made by defendant. On October 2

1992, the jury returned guilty verdicts against defendant a

Zapata as to both counts of the indictment. On March 1

1993, the district court imposed the mandatory minimum 12

month incarcerative sentence prescribed by statute. See___

U.S.C. 841(b)(1)(A)(ii).

II. II. ___

DISCUSSION DISCUSSION __________

On appeal, defendant argues that (1) there

insufficient evidence to support his convictions; (

prosecutorial misconduct during closing argument deprived

of a fair trial; (3) he was victimized by constitutional

ineffective assistance of counsel; (4) evidence discover

after the trial should have entitled him to a new trial; a

(5) the indictment should have been dismissed because he

not tried within the period prescribed by the Speedy Tri

Act. Defendant also takes issue with the district court

method of determining drug quantity at his sentencing.

discuss each argument in turn.

A. Sufficiency of the Evidence A. Sufficiency of the Evidence _______________________________

Defendant's primary and central argument is t

there was insufficient evidence to support his conviction

The argument is not without force, as the evidence again



him was far from overwhelming. Moreover, it is made wi

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considerable skill and energy by defendant's appella

counsel. Ultimately, however, we are not persuaded that a

error took place.

In assessing whether there was sufficient eviden

to sustain a conviction, we examine the record in a li

most favorable to the government, drawing all reasonab

inferences in its favor, with an eye towards whether t

proof would have allowed a rational jury to determine beyo

a reasonable doubt that the defendant was guilty of the cri

charged. See, e.g., Ortiz, 966 F.2d at 711. "In t ___ ____ _____

analysis, no premium is placed upon direct as opposed

circumstantial evidence; both types of proof can adequate

ground a conviction." Id. Indeed, the government "may pro ___

its entire case through the use of circumstantial evidence

United States v. Akinola, 985 F.2d 1105, 1109 (1st Ci ______________ _______



1993).

Two other points should be borne in mind. Firs

the government "need not exclude every reasonable hypothes

of innocence." Id. And second, "juries are not required

___

examine the evidence in isolation, for `individual pieces

evidence, insufficient in themselves to prove a point, may

culmination prove it.'" Ortiz, 966 F.2d at 711 (quoti _____

Bourjaily v. United States, 483 U.S. 171, 179-80 (1987)).

_________ _____________

Here, we think it apparent that the sufficien

issue reduces into a rather straightforward inquiry: Coul

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rational jury have found beyond a reasonable doubt t

defendant knew that the black bag he transported from

Acton Road to the trunk of the blue Monte Carlo contain

cocaine? After all, if defendant had this knowledge,

think it self-evident from the quantity of cocaine defenda

possessed, see United States v. Echevarri, 982 F.2d 675, 6



___ _____________ _________

(1st Cir. 1993) (intent to distribute can be inferred fr

the quantity of the controlled substances possessed), fr

defendant's undisputed possession of the cocaine while

transported it from the condominium to the Monte Carlo, a

from the "`development and collocation of [othe

circumstances'" apparent in the record, see United States___ _____________

Lopez, 944 F.2d 33, 39 (1st Cir. 1991) (quoting United Stat _____ __________

v. Sanchez, 917 F.2d 607, 610 (1st Cir. 1990), cert. denie _______ _____ ____

111 S. Ct. 1625 (1991)),3 that defendant and Zapata (a

others unknown to the grand jury) had at least a tac

agreement to possess the cocaine with an intent to distribu

it, see United States v. Fisher, 3 F.3d 456, 462 n.18 (1 ___ _____________ ______

____________________

3. Among these circumstances were (1) defendant's appare access to 77 Acton Road at a time when a significant amou of drugs were being stored there; (2) defendant's appare access to an automobile registered to a person who seemin

had some degree of control over 77 Acton Road; ( defendant's significant (in terms of time and proximit association with Zapata during the course of Zapata preparations to distribute the cocaine; (4) defendant placing of the drugs into the trunk of the Monte Carlo; a (5) defendant's inconsistent statements regarding

residency and occupation following his arrest.

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Cir. 1993) (noting elements of crimes charged in the insta

indictment).

We conclude that the circumstantial evidence

this case compels an affirmative answer to this questio

Defendant was among a small group of individuals present

with a key to a condominium where millions of dollars wor

of cocaine was being stored. This suggests that the perso

who leased or owned the condominium (and who, it may fair

be inferred, had knowledge of its contents) trusted defenda

enough to allow him to be present at the scene where

serious narcotics offense was being committed. This trus

in turn, permits a reasonable inference of crimin

complicity between defendant and these persons. See Unit ___ ___

States v. Tejeda, 974 F.2d 210, 213 (1st Cir. 1992) ("`T ______ ______

fact finder may fairly infer . . . that it runs counter

human experience to suppose that criminal conspirators wou

welcome innocent non-participants as witnesses to the

crimes.'" (quoting United States v. Passos-Paternina, 9 ______________ ________________

F.2d 979, 985 (1st Cir. 1990), cert. denied, 111 S. Ct. 28 _____ ______

(1991))). And, when this inference is coupled with the fa



that defendant, who had entered the condominium empty-hande

actually retrieved the drugs from the condominium and loa

them into the Monte Carlo, cf. Ortiz, 966 F.2d at 7 ___ _____

(indicating that where the defendant was present during t

course of transportation or storage of contraband, t

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possibility that s/he is an innocent bystander

significantly greater), we think it apparent that the ju

rationally "could have found," Akinola, 985 F.2d at 110 _____ _______

that defendant knew that the black bags contained cocain

Accordingly, we reject defendant's sufficiency challenge.4

B. Prosecutorial Misconduct B. Prosecutorial Misconduct ____________________________

Defendant's second argument is that prosecutori

misconduct during closing argument deprived him of a fa

trial. Specifically, defendant contends that the prosecut

"repeatedly, both expressly and impliedly, referred

Escobar as a member of a conspiracy which included, int



__

alia, [himself] and Zapata" despite the fact that t ____

district court had found insufficient evidence to send t

conspiracy charge against Escobar to the jury.

defendant's view, the prosecutor's statements constitut

impermissible references to matters not in evidence or n

supported by a reasonable view of the evidence. See Unit ___ ___

States v. de Leon Davis, 914 F.2d 344-45 (1st Cir. 1990).______ _____________

are not convinced.

Even if we assume arguendo the truth of defendant ________

assertion, we are constrained by the fact that defendant

not interpose a contemporaneous objection to these referenc

____________________

4. Much of the evidence we have relied upon in rejecti defendant's sufficiency claim equally implicated Escoba whose motion for a judgment of acquittal at the conclusion

the government's case was granted by the district court. T propriety of that acquittal is not, of course, before us.

-10- 10



during the course of closing arguments. Accordingly,

review only for plain error. And, error rises to this le

only when it is "`so shocking that [it] seriously affect[e

the fundamental fairness and basic integrity of t

proceedings conducted below.'" E.g., United States v. Hod ____ _____________ ___

Balwing, 952 F.2d 607, 611 (1st Cir. 1991) (quoting Unit _______ ___

States v. Olivo-Infante,938 F.2d 1406, 1412 (1st Cir. 1991) ______ _____________

Here, the references complained of, even

erroneous, fell far short of the plain error threshold. T

did not in any way interfere with the jury's ability

resolve the keystone issue in this case -- whether defenda

knew that the bags he was transporting to the Monte Car

contained cocaine. Moreover, they were followed by t

separate instructions informing the jury that closi

arguments do not constitute evidence. In light of the

facts, and of the further fact that there was a significa

amount of circumstantial evidence supporting the jury

finding that defendant, Zapata, and persons unknown we

engaged in a conspiracy, see supra note 3, there is no bas ___ _____

for us to conclude that the references to Escobar in t

closing arguments, even if erroneous, resulted in

miscarriage of justice. See United States v. Giry, 818 F. ___ _____________ ____

120, 133 (1st Cir.), cert. denied, 484 U.S. 855 (1987 _____ ______

Accordingly, we reject defendant's prosecutorial miscondu



argument.

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C. Ineffective Assistance C. Ineffective Assistance __________________________

Defendant next argues that his trial attorney

failure to object to the prosecutor's references to Escob

as a member of the conspiracy during closing argumen

constitutes ineffective assistance of counsel. So far as

can tell, this argument never was presented to the distri

court. And, generally speaking, we will not address

ineffective assistance claim raised for the first time

direct appeal. See, e.g., United States v. Jadusingh,___ ____ _____________ _________

F.3d 1162, 1169 (1st Cir. 1994). In situations like t

present one, however, where "`the critical facts are not

dispute and a sufficiently developed record exists,'" i

(quoting United States v. Daniels, 3 F.3d 25, 26-27 (1st Ci _____________ _______

1993)), there is no reason for us to delay consideration



defendant's claim. Therefore, we address defendant

ineffective assistance argument on the merits.

In order to demonstrate constitutional

ineffective assistance of counsel, a defendant must show (

that counsel's conduct fell below the applicable standard f

performance, defined by what the lawyer knew, or should ha

known, at the time of his/her tactical choices; and (2) t

prejudice resulted. Fisher, 3 F.3d at 463. In this contex ______

"prejudice" means that, but for counsel's unprofession

error, there is a reasonable probability that the result

the proceedings would have been different. Lopez-Nieves____________

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United States, 917 F.2d 645, 648 (1st Cir. 1990) (citi ______________

Strickland v. Washington, 466 U.S. 668 (1984)). __________ __________

Here, even if we assume arguendo that tri ________

counsel's failure to object fell below the applicab



standard, we cannot say that, but for the error, there is

reasonable probability that defendant would have be

acquitted. As we have stated above, the prosecutor

references to Escobar during his closing argument, even

erroneous, in no way interfered with the jury's ability

make the central factual determination in this case (i.e

whether defendant knew the bags contained cocaine

Furthermore, we are confident that the trial court's t

instructions that closing arguments are not evidence, ma

subsequent to the challenged references, largely offset a

improper effects of those references. Finally, t

significant circumstantial evidence supporting the jury

conspiracy finding cements our view that the challen

references did not affect the outcome of this cas

Accordingly, we reject defendant's argument that he

victimized by constitutionally ineffective assistance

counsel.

D. Newly-Discovered Evidence D. Newly-Discovered Evidence _____________________________

Defendant's fourth argument is that the distri

court erred in denying, by means of a margin order,

motion for a new trial based upon newly-discovered evidenc

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The evidence at issue is (1) an affidavit by one Clau

Tejeda, which avers that defendant was working for Tejeda

a mechanic on February 4, 1992; and (2) an unsworn stateme

by Escobar providing an innocent explanation for the even

of February 4, 1992. Once again, we are not persuaded

defendant's argument.

In order for a defendant to prevail on a motion f

a new trial based upon newly-discovered evidence, fo

conditions must be met: (1) the evidence was unknown

unavailable to defendant at the time of trial; (2) t

failure to discover the evidence was not due to a lack

diligence on the part of defendant; (3) the new evidence mu

be material; and (4) the evidence would probably produce

acquittal upon retrial of defendant. United States______________

Benavente Gomez, 921 F.2d 378, 382 (1st Cir. 1990); Unit _______________ ___

States v. Wright, 625 F. 2d 1017, 1019 (1st Cir. 1980).______ ______

any one of these four factors is lacking, the motion for

new trial should be denied. United States v. Natanel, 9 _____________ _______

F.2d 302, 313 (1st Cir. 1991), cert. denied, 112 S. Ct. 9 _____ ______

(1992).



Because the court denied defendant's motion witho

stating its reasons, we do not know the precise basis for i

decision. Our examination of the record, however, convinc

us that the court could not have found that defenda

exercised due diligence in attempting to secure Tejeda's a

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Escobar's testimony prior to the conclusion of trial.

portion of the trial record before us indicates t

defendant ever expressed a need for testimony from eit

Tejeda or Escobar; defendant neither requested a continuan

so that he could try to locate either one of them nor sou

the district court's assistance in securing their presence

means of the judicial process. Cf. Wright, 625 F.2d at 10 ___ ______

(affidavit stating that defendant, who failed to move for

continuance to locate witness, had been conducting

"investigation" into the witness's location during tri

would not preclude a finding of a lack of due diligence

Moreover, in his severance motion, defendant did not indica



any wish or intention to call Escobar as a witness on his o

behalf.5 Accordingly, without expressing any comment as

whether defendant has met any of the three other conditio

necessary for the granting of a new trial, we reje

defendant's assertion that the court erred in denying

motion.

E. Speedy Trial Act E. Speedy Trial Act ____________________

____________________

5. The only indication in the record of any attemptdefendant to locate Tejeda or Escobar during trial is fou

in the text of the motion for a new trial, which state "Frederick Fermin Ortiz's lawyer kept telling Rosaura Barri [a friend of Ortiz] to find Escobar and Claudio Tejeda. S finally found them on the twenty-seventh and twenty-eighth

November [after defendant's trial was concluded]." Patentl this is insufficient to constitute due diligence.

-15- 15

Defendant's fifth argument is that he was n

brought to trial within the 70-day period mandated by t

Speedy Trial Act. See 18 U.S.C. 3161(c)(1). We do n



___

agree.

Defendant appears to concede that all time prior

May 20, 1992, was properly excluded from the 70-day peri

prescribed in 3161(c)(1). He argues, however, that t

120-day period from May 20, 1992, through September 18, 199

when he filed a motion to dismiss on Speedy Trial

grounds, was not excludable. He therefore contends that t

court erred in denying his motion to dismiss the indictme

for violation of Act.

Defendant's argument overlooks two facts. Firs

on June 16, 1992, Escobar filed two motions to limit the u

of co-conspirator statements against him. Accordingly, t

70-day speedy trial period, which had started to run on

20, 1992, was tolled, at least for the next 30 days. See___

U.S.C. 3161(h)(1)(F) and (J);6 see also United States___ ____ ______________

Torres Lopez, 851 F.2d 520, 526 (1st Cir. 1988) (speedy tri ____________

motion resulting in excludable time from one defendant sto

____________________

6. Although the record is not entirely clear on this poin the district court, which never ruled on Escobar's motion apparently treated them as motions which did not require

hearing, and which therefore only toll the 70-day period f 30 days. See Henderson v. United States, 476 U.S. 321, 32 ___ _________ _____________ 29 (1986) (indicating that, when a pretrial motion n

requiring a hearing is filed with the district court but n ruled upon, 3161(h)(1)(F) and (J) act in unison to exclu 30 days from the speedy trial clock).

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16

the clock for all codefendants), cert. denied, 489 U.S. 10 _____ ______

(1989). Second, on July 31, 1992, and September 25, 199

the district court convened scheduling conferences at whic

without any objection from defendant's counsel, defendant

trial was continued (first until September 30, 1992, and t

until October 19, 1992). Therefore, it appears that all t

time prior to defendant's trial other than those periods fr

May 20, 1992, through June 16, 1992, and July 16, 199

through July 31, 1992, was excludable. And, because the

periods of non-excludable time do not add up to 70 day

there was no Speedy Trial Act violation.

F. Sentencing F. Sentencing ______________

Defendant's final argument is that the distri

court erred when, in determining that defendant should

held accountable for the 25 kilograms of cocaine found in t

two bags for purposes of both the Sentencing Guidelines a

the mandatory minimum sentence prescribed by 21 U.S.C.

841(b)(1)(A)(ii), it did not make a finding as to defendant



subjective knowledge regarding drug quantity. In so doin

defendant relies upon an opinion in which Judge Weinste

held that a defendant can be sentenced only on the amount

drugs s/he reasonably foresaw as being involved in his/

conduct. See United States v. Ekwunoh, 813 F. Supp 168, 1 ___ _____________ _______

(E.D.N.Y. 1993), vacated on other grounds, 12 F.3d 368 ( _______ __ _____ _______

Cir. 1994).

-17- 17

While the issue raised certainly is an interesti

one, it is not one we need resolve here. Defendant recei

only the 120-month mandatory minimum sentence prescribed by

841(b)(1)(A)(ii) because the two bags contained five or mo

kilograms of cocaine. Thus, any error committed by t

district court would have been harmless unless the cou

could have found, without committing clear error, see Unit

___ ___

States v. Bradley, 917 F.2d 601, 605 (1st Cir. 1990), t ______ _______



defendant reasonably did not foresee that at least fi

kilograms of cocaine were involved in his offenses. Her

there is no way the court could have reached that conclusi

without committing clear error.7 The two bags, which we

visibly heavy to the surveilling agent, contained 25 on

kilogram packages of cocaine (fifteen packages in one bag a

ten in the other) and apparently little, if anything, els

And, as we have already observed, the jury implicitly a

supportably found that defendant knew the contents of t

black bags. In light of these facts alone, there simp

would be no basis for finding that defendant reasonably

not foresee that at least five kilograms of cocaine we

____________________

7. In so stating, we note that, at his sentencing hearin defendant did not evince a desire to add to or challenge a of the drug quantity evidence adduced at trial. Cf. Unit ___ ___ States v. Tavano, 12 F.2d 301, 305-06 (1st Cir. 1993) ( ______ ______ Process Clause requires the sentencing judge to consider a available drug quantity evidence, including eviden conflicting with that introduced at trial.). Accordingl our conclusion is based upon the drug quantity eviden advanced at trial.

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involved in his crimes. Accordingly, even if the distri

court erred in failing to make a finding as to defendant

subjective knowledge regarding drug quantity (a point

which we express no opinion), the error was harmless.

III. III. ____

CONCLUSION CONCLUSION __________

Having rejected each of the arguments made

appear by defendant, we affirm his convictions and sentence

Affirmed. Affirmed ________



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Documents

United States v. Ortiz, 1st Cir. (1994)