U.S. v. Ortega
| Decision Date | 04 August 1998 |
| Docket Number | 97-2323,Nos. 97-2012,s. 97-2012 |
| Citation | 150 F.3d 937 |
| Parties | UNITED STATES of America, Cross-Appellant/Appellee, v. Raymon ORTEGA, Appellant/Cross-Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Ronald A. Conway, Springfield, MO, argued, for Cross-Appellant/Appellee.
Gregory K. Johnson, Asst. U.S. Atty., Springfield, MO, argued (Stephen L. Hill, Jr., on the brief), for Appellant/Cross-Appellee.
Before WOLLMAN, BRIGHT, and HANSEN, Circuit Judges.
Following his convictions on various drug trafficking and firearm charges, the district court sentenced Raymon Ortega to a total of 360 months of imprisonment. Ortega now appeals his convictions and sentences on several grounds, challenging certain evidentiary rulings at trial, the district court's conclusion at sentencing that he had two prior felony convictions, the district court's drug quantity determination at sentencing, and the district court's failure to make findings regarding controverted matters in the Presentence Investigation Report (PSIR). The government cross-appeals, arguing that the district court erred by failing to sentence Ortega to a mandatory life sentence. We affirm in part and reverse and remand in part.
The evidence at trial demonstrated that in January 1995, law enforcement authorities in Missouri were investigating Larry Acton and Raymon Ortega for their involvement in methamphetamine transactions. On January 16, 1995, Acton met with a confidential informant and Missouri State Trooper Dan Banasik, both posing undercover as individuals wanting to purchase methamphetamine. The prearranged meeting place was located one-half mile from Ortega's residence. Acton testified that prior to the deal, he went to Ortega's residence where Ortega weighed out one ounce of methamphetamine on a digital scale. Ortega then packaged it for Acton and allowed Acton to take it without payment. At the prearranged meeting place, Trooper Banasik paid Acton $2,000 for the one-ounce package. Banasik testified that Acton indicated he would be delivering the money to his drug source. Acton testified that he delivered the money to Ortega and received some methamphetamine for making the deal.
Trooper Banasik arranged another meeting with Acton to occur January 25, 1995, for the purpose of purchasing two ounces of methamphetamine. Acton testified that he had obtained the methamphetamine for this deal from Ortega's room at the Residence Inn in Springfield on the previous night. Ortega's girlfriend, Jennifer Hoopes, was also present. Acton said that on this occasion, he saw a black hollow tube in Ortega's room and Ortega boasted that it contained 28 ounces of methamphetamine. Acton did not actually see the controlled substance. Acton obtained two ounces from Ortega and delivered it to Trooper Banasik on January 25, 1995, as planned. At this meeting, Acton mentioned to Banasik that his source was a man named "Raymon O."
Trooper Banasik arranged a third meeting to take place on January 28, 1995, for the purpose of purchasing yet a larger amount of methamphetamine. On that day, Acton delayed in delivering the methamphetamine Banasik had ordered. Trooper Banasik contacted Acton about the deal, and Acton assured Trooper Banasik that his source had the methamphetamine but was having car trouble, which caused the delay. Acton contacted Ortega, and the two made arrangements to transfer the methamphetamine that night at a Wal-Mart parking lot. First, Acton obtained the purchase money from Trooper Banasik at a McDonald's restaurant across the highway from the Wal-Mart store. Acton then waited for his source in the Wal-Mart parking lot, where a police surveillance team was monitoring the transaction and preparing to make arrests.
Ortega's girlfriend, Hoopes, drove Ortega to the Wal-Mart parking lot where they parked next to Acton's truck. When Ortega got out of the car and opened the hood, the surveillance team moved in and arrested all three suspects. Anthony Grootens, a special agent for the Drug Enforcement Administration, interviewed Ortega, who admitted that he had approximately seven ounces of methamphetamine under the hood of his car. Ortega told Grootens that he obtained methamphetamine from three laboratories--one in Arkansas, one in Southern Missouri, and one in Oklahoma. Ortega also admitted he had been receiving about one and one-half pounds of methamphetamine every week or so (possibly for the last 18 months) at a price of $16,000 per pound. By offering this information, Ortega gave some indication that he was willing to cooperate in the investigation, but he refused to name the individuals he worked for unless the agents would promise his own release, which they did not agree to do.
The agents seized two pipes and one plastic wrapped bundle from under the hood of the car in which Ortega arrived. Two small plastic bags containing methamphetamine were hidden in the pipes, and the plastic wrapped bundle contained 13 syringes. Agents seized a cloth bag containing five handguns from the back seat of the automobile. Subsequently, agents also searched Ortega's residence. While they found no controlled substances or drug-related currency at Ortega's residence, they seized a gun holster, two gun boxes, and a black bag containing notebooks referencing what the agents interpreted to be prices, customer names, and quantities of methamphetamine sold or available.
The government charged Ortega, Acton, and Hoopes in a six-count indictment. Count one charged all three with conspiracy to distribute methamphetamine from July 1994 through January 1995, in violation of 21 U.S.C. §§ 841(a) and 846 (1994). Counts two and three charged Ortega and Acton with distributing methamphetamine on January 16 and 25, 1995, and count four charged all three with attempting to distribute methamphetamine on January 28, 1995, in violation of 21 U.S.C. §§ 841(a) and 846, and 18 U.S.C. § 2. Count five charged Ortega with using and carrying firearms during and in relation to a drug transaction, in violation of 18 U.S.C. § 924(c). Count six charged Ortega with being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g) and 924(a)(2). Acton negotiated a plea agreement and pleaded guilty to one count of distribution in exchange for dismissal of the other counts against him. Ortega proceeded to trial.
At trial, Acton testified against Ortega pursuant to his plea agreement and named Ortega as his source for methamphetamine. The agents involved in the investigation and surveillance testified to the facts set forth above. Afton Ware, a chemist for the Missouri Highway Patrol and expert witness for the government, testified that the substances he was asked to analyze were primarily d-methamphetamine. The jury found Ortega guilty on all counts.
Following trial, the district court set aside the count five conviction for using and carrying a firearm in relation to a drug transaction. The district court sentenced Ortega on the remaining counts. Ortega objected to the government's listing of two prior felony convictions and to certain factual assertions in the PSIR. The district court sentenced Ortega to 360 months of imprisonment for each of counts one, two, three, and four, all to run concurrently; and 120 months of imprisonment on count six, also to run concurrently. Ortega now appeals his convictions and sentences.
Ortega first argues that the district court erred by limiting the scope of his cross-examination of codefendant Larry Acton. Ortega argues that the district court improperly restricted his cross-examination attempts to show bias or a motive to lie on the part of Acton, in violation of Ortega's right to confrontation.
"Absent a clear abuse of discretion and a showing of prejudice, we will not reverse a district court's ruling limiting cross-examination of a prosecution witness on the basis that it impermissibly infringed [the defendant's] right of confrontation." United States v. Stewart, 122 F.3d 625, 627 (8th Cir.1997). The right to cross-examination is secured by the Confrontation Clause of the Sixth Amendment, which guarantees an accused the right "to be confronted with the witnesses against him." U.S. Const. amend. VI. This constitutional guarantee secures an opportunity for effective cross-examination. Delaware v. Van Arsdall, 475 U.S. 673, 678-79, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). The Supreme Court has "recognized that the exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination." Davis v. Alaska, 415 U.S. 308, 316-17, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). The defendant's right to confront witnesses, however, " 'does not prevent a trial judge from placing [reasonable] limits on defense counsel's cross-examination of government witnesses,' " and the court has wide latitude to impose such limits. United States v. Brown, 110 F.3d 605, 611 (8th Cir.1997) (quoting United States v. Willis, 997 F.2d 407, 415 (8th Cir.1993), cert. denied, 510 U.S. 1050, 114 S.Ct. 704, 126 L.Ed.2d 670 (1994)).
The district court allowed Ortega to extensively cross-examine Acton regarding the terms of his plea agreement but sustained some of the government's objections. At one point, the Assistant United States Attorney (AUSA) objected on the basis of attorney-client privilege when Ortega's counsel asked Acton, "[a]nd your lawyer made it very clear that his focus was negotiating the best deal he could get for you; isn't that right?" (Trial Tr. at 214.) The district court sustained the objection. Later, Ortega's counsel questioned, "Your lawyer explained other things about the Sentencing Guidelines, didn't he?" (Trial Tr. at 219.) The AUSA again objected on the basis of the attorney-client privilege, and again the district court sustained the objection. Ortega's counsel then...
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