U.S. v. Ortiz

• Decision Date: 30 April 1996
• Docket Number: No. 92-3144,92-3144
• Citation: 317 U.S.App. D.C. 262,82 F.3d 1066
• Parties: UNITED STATES of America, Appellee v. Lionel ORTIZ, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1066

82 F.3d 1066

317 U.S.App.D.C. 262

UNITED STATES of America, Appellee v. Lionel ORTIZ, Appellant.

No. 92-3144.

United States Court of Appeals District of Columbia Circuit.

Argued Jan. 19, 1996.

Decided April 30, 1996.

Appeal from the United States District Court for the District of Columbia (No. 91cr00313-02).

Mona Asiner, appointed by the court, Alexandria, VA, argued the cause and filed the briefs for appellant.

Thomas A. DiBiase, Assistant United States Attorney argued the cause for appellee with whom Eric H. Holder, Jr., United States Attorney, John R. Fisher, Thomas J. Tourish, Jr., Assistant United States Attorneys, were on the brief. Elizabeth Trosman, Washington, DC, entered an appearance.

Before: SILBERMAN, BUCKLEY and ROGERS, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

Appellant Lionel Ortiz appeals his convictions by a jury of several drug distribution offenses on the grounds that in two instances the district court erred by failing to act sua sponte, and in a third instance, abused its discretion. Specifically, Ortiz contends that the district court erred by failing to conduct a colloquy with him to determine whether he had waived his right to testify and plainly erred by failing to inquire whether a potential defense witness could assert a blanket Fifth Amendment privilege. Ortiz also contends that the district court abused its discretion by denying a mistrial when the prosecutor commented in closing argument on Ortiz' failure to speak at trial. We affirm.

I.

Ortiz was indicted for conspiracy to distribute cocaine base, ¹ attempted distribution of cocaine base, ² unlawful use of a communication facility, ³ possession with intent to distribute cocaine base, ⁴ and distribution of cocaine base. ⁵ According to the government's evidence, Special Agent Robert Valentine of the Drug Enforcement Administration first met Ortiz on April 9, 1991. Earlier that day, Valentine had arranged with Florentino Mendez to purchase 125 grams of crack cocaine for $3,200, and they met that evening at a restaurant to consummate the transaction. Mendez introduced Ortiz to Valentine as "Carlos." Ortiz told Valentine that the drugs would be there in 30 minutes and would cost "33," which Valentine agreed to pay. When the drugs did not arrive, Ortiz made several telephone calls. When Valentine decided to leave, Ortiz wrote down his pager number for Valentine to contact him for future transactions.

Ortiz paged Valentine the next day, April 10th. Valentine taped this telephone conversation in which he and Ortiz arranged to meet the following day. On April 11th, Ortiz and Valentine went to a restaurant restroom where Ortiz gave Valentine a plastic bag of crack cocaine in exchange for $3,200.

A week later, on April 18th, Valentine arranged with Mendez to buy a quarter kilogram of cocaine base for $6,000. That evening, Valentine and undercover agent Barbara Rist met Mendez and Ortiz at a restaurant. In the restroom, Ortiz gave Valentine a plastic bag of white substance. Upon rejoining Mendez and Rist, Rist gave Ortiz the money. Ortiz counted it, reported that it was "good" and left to pay "the guy"; he returned and Valentine gave him $1,000 that was short. Ortiz left again, and later reported that "everything was fine."

Thereafter, Valentine and Mendez arranged a fourth meeting. On April 25, Mendez met Valentine at a restaurant, advising that Ortiz "was in the area" with a kilogram of crack that they would sell for $26,000. When Ortiz arrived, after counting the proffered money, he went with Valentine to the restroom. But when Ortiz insisted on getting the money before turning over a bag containing about one kilogram of crack, they returned to the restaurant and Valentine gave a prearranged signal to other DEA agents to arrest Ortiz and Mendez. A search of Ortiz turned up 125 grams of crack and a pager.

The government also presented testimony from DEA agents who conducted surveillance of the four meetings and identified Ortiz as the person making the drug sales as well as photographs of the scenes and portions of the meetings, a tape recording of Valentine's April 10th telephone conversation with Ortiz, and the drugs.

Ortiz presented testimony from his priest, his employer, his wife, and family friends to show that he was working, as his April work time cards showed, on the dates of the drug transactions. In addition, he presented two expert witnesses. A foreign language interpreter opined, based on comparing Ortiz' English proficiency with that of the speaker on the tape recording of the April 10th tape conversation, that "it is probably not Mr. Ortiz who is on [the] tape." A forensic document examiner opined that Ortiz' left-handed handwriting samples and the written pager number given to Valentine, which contained evidence of a right-handed writer, were "entirely different." ⁶

The jury found Ortiz guilty of the drug counts, but deadlocked on the counts charging unlawful use of a communication facility, which the government then dismissed. The district court sentenced Ortiz to 210 months' imprisonment and five years' supervised release. ⁷

II.

Ortiz contends that the district court erred by failing sua sponte to address him personally about whether he had knowingly and intelligently waived his right to testify. He maintains that he was unaware his counsel had advised the court that Ortiz had made an "informed" decision not to testify, and that had he known of his right to testify he would have testified.

In Rock v. Arkansas, 483 U.S. 44, 49-53, 107 S.Ct. 2704, 2707-10, 97 L.Ed.2d 37 (1987), the Supreme Court recognized that "fundamental to a personal defense" of every criminal defendant is the right to testify in his or her own defense. Concluding that the right to testify "is essential to due process of law in a fair adversary process," id. at 51, 107 S.Ct. at 2709 (quoting Faretta v. California, 422 U.S. 806, 819 n. 15, 95 S.Ct. 2525, 2533 n. 15, 45 L.Ed.2d 562 (1975) (Sixth Amendment)), and "a necessary corollary to the Fifth Amendment's guarantee against compelled testimony," id. at 52, 107 S.Ct. at 2709, the Court acknowledged that "the most important witness for the defense in many criminal cases is the defendant." Id.

A number of circuit courts have concluded that the district court does not have a sua sponte duty to conduct a colloquy with the defendant at trial to determine whether the defendant has knowingly and intelligently waived the right to testify. ⁸ In finding no duty, the circuits have tended to focus, at least in part, on avoiding interference with the client-counsel relationship and defense strategy. See, e.g., Pennycooke, 65 F.3d at 11; Teague, 953 F.2d at 1533 n. 8; Underwood, 939 F.2d at 476; Martinez, 883 F.2d at 757; Siciliano, 834 F.2d at 30. Thus, defense counsel, not the court, has the primary responsibility for advising the defendant of his right to testify and for explaining the tactical implications of doing so or not. E.g. Teague, 953 F.2d at 1533-34; Campione, 942 F.2d at 439. Other concerns expressed by some circuits about a per se requirement include whether the inquiry itself would tend to suggest that the district court had an opinion on what the defendant should do, potentially disrupting trial strategy, e.g., Pennycooke, 65 F.3d at 11; Siciliano, 834 F.2d at 30, and would cause delay. Underwood, 939 F.2d at 476.

Nevertheless, some circuits readily acknowledge that there are circumstances when a colloquy will be important. In Jordan, the Fifth Circuit suggested that a colloquy would eliminate the uncertainty left by a silent record when the appellate court (as well as the trial court) is confronted with the defendant's claim that his right to testify was denied. 34 F.3d at 314-15. Similarly, in Pennycooke, the Third Circuit, upon rejecting a per se colloquy requirement, acknowledged that certain "exceptional, narrowly defined circumstances" might necessitate a colloquy, such as where a defendant expresses the desire to testify, or it becomes apparent that an attorney is frustrating the client's desire to testify. 65 F.3d at 12-13. The Seventh Circuit, too, has acknowledged that "an inquiry by the district court into the defendant's desire to testify has much to recommend it," while declining to find a constitutional requirement in the absence of some indication that the defendant was prevented from exercising that right. United States v. Thompson, 944 F.2d 1331, 1345 (7th Cir.1991); Ortega v. O'Leary, 843 F.2d 258, 261 n. 1 (7th Cir.), cert. denied, 488 U.S. 841, 109 S.Ct. 110, 102 L.Ed.2d 85 (1988); see also Vargas, 920 F.2d at 170, supra n. 8. Some state courts, on the other hand, have gone further, to hold that the trial judge should conduct an on-the-record inquiry with a defendant to assure that the defendant understands that the right to testify is a personal right that only the defendant can waive, focusing as well on the desirability of avoiding post-trial issues and facilitating appellate review. ⁹ The question remains open in this circuit.

We, like our sister circuits and the state courts, have no doubt that a criminal defendant has a fundamental constitutional right to testify that is personal to the defendant and cannot be waived by counsel or the court. See Boyd, 586 A.2d at 674 (citing cases). Although the decision to testify involves a strategic choice, the choice remains the defendant's and not his attorney's. ¹⁰ Counsel, in turn, has the obligation to advise the defendant of his or her right to testify or not in a manner that would enable the defendant to make a knowing and intelligent choice. Teague, 953 F.2d at 1533-34; Campione, 942 F.2d at 439; United States v. Goodwin, 770 F.2d 631, 637 (7th Cir.1985), cert. denied, 474 U.S. 1084, 106 S.Ct. 858, 88 L.Ed.2d 897 (1986). In determining whether the district court has an obligation to conduct a colloquy, we recognize that in some other areas...