U.S. v. Ortiz
| Decision Date | 05 November 2002 |
| Docket Number | No. 00-4083WM.,No. 00-4082WM.,No. 01-1136WM.,00-4082WM.,00-4083WM.,01-1136WM. |
| Parties | UNITED STATES of America, Appellee, v. Arboleda A. ORTIZ, Appellant. United States of America, Appellee, v. German Sinisterra, Appellant. United States of America, Appellee, v. Plutarco Tello, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Appeal from the United States District Court for the Western District of Missouri, Gary A. Fenner, J.
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Cenobio Lozano, argued, Harrisonville, MO, for Arboleda A. Ortiz.
Frederick A. Duchart, argued, Kearney, MO (Jennifer Brewer, on the brief), for German C. Sinisterra.
Thomas M. Bradshaw, argued, Kansas City, MO (Daniel O. Herrington and Amy E. Engel, on the brief), for Plutarco Tello.
Jeffrey Valenti, argued, Kansas City, MO (Todd P. Graves, Mark A. Miller and Lajuana M. Counts, on the brief), for U.S.
Before WOLLMAN, RICHARD S. ARNOLD, and LOKEN, Circuit Judges.
Arboleda A. Ortiz, German C. Sinisterra, and Plutarco Tello appeal their convictions and death sentences (in the cases of Mr. Ortiz and Mr. Sinisterra) and life sentence (in the case of Mr. Tello) for murder, drug trafficking, and traveling in interstate commerce with the intent to commit a murder for hire. Appellants argue that the trial court did not exclude or suppress inadmissible evidence, including confessions that were involuntary and obtained in violation of Miranda and Article 36 of the Vienna Convention on Consular Relations, did not conduct adequate voir dire, violated defendants' Sixth and Eighth Amendment rights, improperly instructed the jury at the sentencing phase of the trial, and should have declared a mistrial sua sponte in response to remarks made in the government's closing arguments. We affirm. In particular, we hold that defendants have shown no prejudice to their case resulting from violations of the Vienna Convention, and therefore are entitled to no relief on the basis of those violations.
Defendants Arboleda A. Ortiz, German C. Sinisterra, and Plutarco Tello were found guilty of (1) conspiracy to distribute cocaine, a Schedule II controlled substance, in an amount of five kilograms or more; (2) aiding and abetting the use of a firearm in relation to a drug-trafficking crime and committing a murder in the perpetration of a drug trafficking crime; and (3) knowingly traveling in interstate commerce with the intent that a murder for hire be committed. In addition, Mr. Sinisterra was found guilty on one count of criminal forfeiture. At the sentencing phase of the trial, the government requested that the death penalty be imposed on all three defendants. The jury returned a verdict that Mr. Ortiz should receive sentences of death on Counts Two and Three, and a custodial sentence of 324 months imprisonment on Count One; that Mr. Sinisterra should receive sentences of death on Counts Two and Three and a custodial sentence of 324 months on Count One; and that Mr. Tello should receive life imprisonment on Counts Two and Three, and a custodial sentence of 324 months on Count One.
The events leading up to the murder which precipitated defendants' arrests are as follows. Edwin Hinestroza, a fugitive from justice, also charged with the above three Counts, ran a cocaine distribution ring in the Kansas City metropolitan area. He was assisted by Héberth Andres Borja-Molina ("Borja"). Cocaine shipments came from "La Oficina" ("the office" — a drug cartel) in Colombia, South America, via Mexico. To transport the cocaine from Houston, where it first arrived from Mexico, Hinestroza used several individuals, including one of the defendants, German Sinisterra. The cocaine was delivered in vehicles with false compartments to one of Hinestroza's five major customers on consignment, and the recipients were allowed several days to repay the drug debt. Once these debts were paid, money was sent back to Houston in the same vehicles used to transport the cocaine to Kansas City. Mr. Hinestroza lived in Kansas City with Monica Osma, the sister of Julian Colon (the murder victim). On November 19, 1998, the apartment Mr. Hinestroza and Ms. Osma shared was, by Ms. Osma's account, robbed, and $240,000 of drug proceeds was stolen.
One week later, Ms. Osma (recovering from injuries sustained during the reported robbery) was visited by Mr. Hinestroza, Jaime Hurtado (who worked for Hinestroza), and two Colombian males, the defendants Ortiz and Tello. Mr. Ortiz and Mr. Tello claimed to represent "La Oficina," or the drug cartel. They questioned Ms. Osma as to the robbery and were unconvinced by her account. They issued a death threat, using the word "Muracco" — a colloquialism taken to mean that "La Oficina" would not be satisfied unless a dead body appeared. Two days later, in Kansas City, Mr. Hinestroza asked Borja and Colon to meet him at a hotel, where they were confronted by the three defendants, Mr. Ortiz, Mr. Sinisterra, and Mr. Tello. Borja testified that he knew both Ortiz and Sinisterra to be killers by trade. Borja and Colon accompanied the defendants to another house in Kansas City, where they were bound with duct tape and physically assaulted by Hinestroza, Ortiz, Sinisterra, and Tello, who demanded to know where the $240,000 in lost drug proceeds were. The beatings and demands continued, and Borja was dragged to the basement, where he overheard Mr. Hinestroza order the defendants to "shoot him [Colon] in the head" and then heard "shoot the other one, too."1 Borja was also shot, but survived and pretended to be dead while he and the other victim, Mr. Colon, were placed in the trunk of a vehicle belonging to Borja. The vehicle was driven to a park where it and the bodies were abandoned.
Borja escaped from the trunk of the car and eventually reached Mr. Colon's wife, who took him to the hospital, where police met with them. The three defendants were taken into custody within hours of the murder and attempted murder.
Officer David Martin of the Overland Park Police Department was asked to help take German Sinisterra from the Drury Inn in Overland Park to the Sanders Station. Officer Martin had no conversation with Mr. Sinisterra before he entered the booking area, at which point a videotape was started. Officer Martin read Mr. Sinisterra his rights and asked if he understood them, to which Sinisterra replied, "yes." Immediately afterwards he signed a Miranda rights waiver form (in English), although he was not asked if he could read. Chief John Douglass of the Overland Park Police Department asked Sinisterra several questions and concluded that Sinisterra understood him. When Chief Douglass learned that Sinisterra was a foreign national and not a United States citizen, he told Sinisterra that he had the right to contact his consul and that the police would let him do that. Sinisterra did not respond to this suggestion, and Chief Douglass concluded that he did not wish to contact his consul. Officer Martin did not give Mr. Sinisterra an opportunity to contact his consul. Sinisterra asked to be permitted to make a phone call, and was refused. As he later testified at the suppression hearing, he wished to call his wife, on whom he was accustomed to rely for help in communicating in English because of his limited education. He had completed the second grade in Colombia.
Deputy Herrera asked Mr. Sinisterra in Spanish if he could understand English, and he responded that he could understand both Spanish and English. Deputy Herrera thought that appellant's English was fair, and that he understood questions put to him. Deputy Herrera's Spanish was acquired growing up in a family (originally from Mexico) where Spanish was spoken, although his ability to write in Spanish is not good.
During a background interview conducted by Detectives Wilson and Sharp, Detective Wilson also concluded that Mr. Sinisterra understood what the detectives said to him, including questions put to him in English. Detective Sharp understood Mr. Sinisterra's responses in English. When presented with a Miranda rights waiver form, Mr. Sinisterra stated that he did not read English, whereupon Detective Sharp read the form out loud to him. At this point, appellant stated that he understood his rights, and signed the Miranda form. After a non-videotaped interrogation by Detectives Wilson and Sharp in which Mr. Sinisterra recounted the events leading up to the murder and his role in it, he agreed to provide a videotaped statement. Detective Sharp's impression during the videotaping was that Mr. Sinisterra understood the detectives' English. At no time did he ask for an interpreter, nor did the detectives offer him one.
Mr. Sinisterra stated that he had gotten a call in Houston from a man named "G.G." (identified as Edwin Hinestroza) who wanted him to come to Kansas City to get his stolen money back. Later the same evening, appellant met "G.G.," the victim, Julian Colon, and another person (Borja) at his motel in Kansas City. They drove to a house where Sinisterra and Hinestroza tied up two people. "G.G." asked Sinisterra to shoot Colon, and he agreed. He then shot the victim in the head and took him to the car.
In subsequent testimony, at the suppression hearing (conducted with the aid of a Spanish interpreter), appellant Sinisterra testified that he did not know that he had the right to refuse to talk to detectives during this interrogation, and that, had he known, he would have refused to talk to them. He also testified that he did not know that he had the right to ask for an American lawyer to represent him, and that, had he known of this right, he would have asked for a lawyer. He testified that he asked to be allowed to call his wife or someone else at least...
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