USA v. Ortega

• Decision Date: 01 February 2000
• Docket Number: No. 98-10323,98-10323
• Citation: 203 F.3d 675
• Parties: (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOSE ROMAN ORTEGA, aka Romualdo Roman Ortega, OPINION Defendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 675

203 F.3d 675 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOSE ROMAN ORTEGA, aka Romualdo Roman Ortega, OPINION Defendant-Appellant.

No. 98-10323

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted October 8, 1999

Decided February 1, 2000

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] COUNSEL: Ann Hargrove Voris, Assistant Federal Public Defender, Fresno, California, for the defendant-appellant.

Kenneth B. Julian, Assistant United States Attorney, Fresno, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California; Anthony W. Ishii, District Judge, Presiding. D.C. No. CR-97-05239-AWI

Before: Harry Pregerson and Charles Wiggins, Circuit Judges, and David O. Carter,¹ District Judge.

WIGGINS, Circuit Judge:

Jose Roman Ortega appeals his jury conviction and sentence for multiple drugand firearm-related offenses. We have jurisdiction under 28 U.S.C. S 1291, and we AFFIRM.

In doing so, we find that an INS agent violated the Sixth Amendment when he obtained, outside the presence of Ortega's counsel, Ortega's statement regarding the firearm used during the offenses. The tainted statement, however, may still be used for impeachment purposes. We also find that the district court did not err by limiting Ortega's cross-examination of the INS agent to only inculpatory portions of Ortega's statement. Last, we find that the trial court's jury instruction for aiding and abetting a conspiracy did not undermine the jury instruction for conspiracy.

I.

On August 25, 1997, Ortega's co-defendant Ramon Jose Coronado sold 309 grams of methamphetamine to undercover police officer Candido Alvarez. On September 3, 1997, Alvarez introduced Coronado to Sergeant Greg Hernandez, who posed as a buyer of methamphetamine. Coronado agreed to sell to Alvarez two pounds of methamphetamine.

On September 16, 1997, Coronado told Alvarez that he was prepared to deliver the methamphetamine. At a highway rest stop, Coronado made telephone calls allegedly to Ortega.² Afterwards Coronado told Alvarez that he was going to pick up the methamphetamine from his source and would later give Alvarez instructions to complete the transaction. Coronado then drove to Ortega's residence while being followed by surveillance officers. At the residence, Ortega dug up the methamphetamine from the yard. Before leaving the residence, Ortega put a .22 caliber pistol in his waistband in order to protect himself from other drug traffickers. When Coronado and Ortega were ready, Coronado paged Alvarez and Hernandez and instructed the two to drive to the rest stop. Thereafter, Ortega drove himself and Coronado to the rest stop. When all had arrived, Ortega gave the methamphetamine to Alvarez.

At that point, Alvarez and Hernandez arrested Ortega and Coronado with the assistance of other officers. The officers also seized the methamphetamine and the pistol from Ortega. After waiving his Miranda rights, Ortega confessed to the following: (1) He lived at the residence from which the methamphetamine came; (2) an unnamed cousin gave him the methamphetamine; (3) he arranged to sell the methamphetamine to Coronado's friend; (4) he dug up the methamphetamine from his yard prior to driving to the rest stop; (5) he carried the gun to the drug transaction for his personal protection; and (6) the pistol belonged to him although it was given to him by his cousin.

During a search of Ortega's residence, the officers found in Ortega's bedroom a sawed-off shotgun, a pay-owe sheet with drug trafficking information, a counterfeit green card, and a loaded semi-automatic rifle. Ortega admitted that the bedroom was his alone and that the items seized belonged to him. In the dining room, the officers found a telephone bill in Ortega's name, a piece of paper with Coronado's name and phone number, and plastic packaging material and duct tape similar to that used to wrap the methamphetamine. In the garage, the officers found indicia of methamphetamine manufacturing, including a cutting agent, filter masks, pseudoephedrine (a main ingredient for making methamphetamine), and a triplebeam scale.

On September 17, 1997, Ortega made his initial appearance on the drug charges and was appointed counsel. Nine days after counsel had been appointed, INS agent Hector Bencomo questioned Ortega, outside defense counsel's presence, to determine his immigration status and to investigate possible immigration-related crimes. During the interview, Bencomo and Ortega discussed the source of the pistol that was used during the drug transaction; Ortega told Bencomo that a friend had lent him the pistol to kill chickens.

At the trial, during the presentation of the government's case-in-chief, Officer Lopez, one of the officers who had arrested Ortega and searched Ortega's residence, testified about the inculpatory portions of Ortega's confession. He did not testify, however, about Ortega's non-self-inculpatory explanations, such as Ortega's having received the pistol and the drugs from his cousin. During the presentation of his case, Ortega denied any knowing participation in the transaction with Coronado. He also testified that the firearms found on his waistband and in his bedroom belonged to his cousin. On rebuttal, as a means of impeaching Ortega's testimony that he received the pistol from his cousin in order to take care of it for the cousin, INS agent Bencomo testified that Ortega said that a friend lent him the pistol to kill chickens.

The trial court instructed the jury to consider Bencomo's testimony solely for the purposes of assessing Ortega's credibility. It then instructed the jury on the elements of conspiracy and the elements of aiding and abetting a conspiracy. On April 22, 1998, a jury found Ortega guilty of (1) conspiring to distribute methamphetamine and to possess it with the intent to distribute, (2) distributing methamphetamine, (3) possessing methamphetamine with the intent to distribute, (4) carrying a firearm during a narcotics offense, (5) possessing firearms as an alien, and (6) possessing an unregistered firearm.

II.

A. Violation of the Sixth Amendment Right to Counsel

Whether a defendant was denied his Sixth Amendment right to counsel is a question of law reviewed de novo. See United States v. Moore, 159 F.3d 1154, 1158 (9th Cir. 1998). An individual obtains the "strict protections of the right to counsel when "a suspect has become an `accused.' " United States v. Covarrubias, 179 F.3d 1219, 1223 (9th Cir. 1999) (quoting Michigan v. Jackson, 475 U.S. 625, 632 (1986)). Because Ortega had formally appeared in federal court and was appointed counsel on September 17, 1997, his Sixth Amendment right to counsel had attached. "[O]nce this right to counsel has attached and has been invoked, any subsequent waiver during a police-initiated custodial interview is ineffective." McNeil v. Wisconsin, 501 U.S. 171, 175 (1991); Jackson, 475 U.S. at 632-33 (ruling that the defendants' statements to officers during a police-initiated interview -even if made pursuant to a voluntary, knowing, and intelligent waiver -after the defendants were arraigned and appointed counsel, should have been suppressed); see also Covarrubias, 179 F.3d at 1223 (stating that once the right to counsel attaches, the government may no longer "initiate interrogation of a suspect" even if there has been a written waiver). Ortega therefore argues that the interview conducted on September 26, 1997, by INS agent Bencomo outside the presence of counsel violated his Sixth Amendment rights.

The government asserts that the INS did not violate Ortega's Sixth Amendment right because at the time of the interview, the government had only charged Ortega with a drug offense. During the interview, INS agent Bencomo questioned Ortega about the source and ownership of the pistol that was used at the time the drug transaction occurred. The government argues that because the purpose of the INS interview was to determine Ortega's immigration status and to investigate immigration-related crimes, it was constitutional to question Ortega about an offense different from the one charged. The government is correct in noting that the Sixth Amendment right to counsel is offense-specific and therefore prohibits government-initiated interrogation only regarding the offense to which the right of counsel has attached. See McNeil, 501 U.S. at 175 (1991); Covarrubias , 179 F.3d at 1233. The present situation, however, falls within an exception to the offense-specific requirement.

This exception exists "when the pending charge is so inextricably intertwined with the charge under investigation that the right to counsel for the pending charge cannot constitutionally be isolated from the right to counsel for the uncharged offense." Covarrubias, 179 F.3d at 1223 (quoting United States v. Hines, 963 F.2d 255, 257 (9th Cir. 1992)). This court recently set forth the test for determining whether or not this exception applies:

Deciding whether the exception is applicable requires an examination and comparison of all of the facts and circumstances relating to the conduct involved, including the identity of the persons involved (including the victim, if any), and the tim ing, motive, and location of the crimes. No single factor is ordinarily dispositive. . . . The greater the commonality of the factors and the more directly linked the conduct involved, the more likely it is that courts will find the exception to be applicable.

Covarrubias, 179 F.3d at 1225.

Here, the drug offenses and the gun offenses arose from exactly the same facts and circumstances. The offenses occurred at the same time and location, involved the same parties, and were tried together. Ortega's motive for carrying a gun is directly linked with the drug charges: He told an officer that he took the gun for protection during the drug transaction. Moreover,...