U.S. v. Ortiz

• Decision Date: 19 September 1988
• Docket Number: No. 1246,D,1246
• Parties: 26 Fed. R. Evid. Serv. 1527 UNITED STATES of America, Appellee, v. Marilyn ORTIZ, Defendant-Appellant. ocket 88-1095.
• Court: U.S. Court of Appeals — Second Circuit

Page 900

857 F.2d 900

26 Fed. R. Evid. Serv. 1527

UNITED STATES of America, Appellee, v. Marilyn ORTIZ, Defendant-Appellant.

No. 1246, Docket 88-1095.

United States Court of Appeals,

Second Circuit.

Argued June 16, 1988.

Decided Sept. 19, 1988.

Colleen P. Cassidy, The Legal Aid Soc., Federal Defender Services Unit, New York City, for defendant-appellant.

Christine Gray, Asst. U.S. Atty., S.D.N.Y., New York City (Rudolph W. Giuliani, U.S. Atty., S.D.N.Y., Linda Imes, Asst. U.S. Atty., S.D.N.Y., New York City, of counsel), for appellee.

Before OAKES, MESKILL and PIERCE, Circuit Judges.

MESKILL, Circuit Judge:

Defendant-appellant Marilyn Ortiz appeals from a judgment of conviction entered in the United States District Court for the Southern District of New York, Metzner, J., on a charge that she possessed heroin with intent to distribute in violation of 18 U.S.C. Sec. 2 (1982) and 21 U.S.C. Secs. 812, 841(a)(1), 841(b)(1)(C) (1982 & Supp. IV 1986). A second count, distributing heroin within one thousand feet of a school, see 21 U.S.C. Sec. 845a (Supp. IV 1986), was dismissed after the jury failed to agree on a verdict.

At issue in this appeal is the district court's in limine ruling on the admissibility of Ortiz's prior state court drug conviction and the ruling's effect on the argument defense counsel was allowed to make to the jury. The government proposed to introduce the conviction as a prior similar act probative of intent under Fed.R.Evid. 404(b).

The district court ultimately concluded that because the defense was based on mistaken identity, the conviction would not be admitted into evidence. In discussing defense counsel's proposed jury argument, the district court warned counsel not to raise the issue of intent to distribute the drugs. Although this decision had significant consequences for the presentation of Ortiz's defense, we conclude that defense counsel's handling of the matter constituted a waiver of her claim. We accordingly affirm her conviction.

BACKGROUND

The underlying facts may be briefly summarized. The evidence at trial showed that on September 16, 1987, undercover New York City Police Officer Audrey Valentine purchased two glassine envelopes of heroin stamped with the brand name "Vega." Valentine paid the seller $30 in "buy money," Ortiz's defense was predicated on a theory of mistaken identity. She sought to convince the jury that she was not the woman who sold the heroin to Officer Valentine, and that Detective Fitzpatrick and Sergeant Jennings had arrested the wrong person. She especially emphasized discrepancies between her own appearance and Valentine's broadcast description of the heroin seller. Fitzpatrick's written arrest report did not mention the belt in Valentine's description, and Ortiz was wearing high top sneakers, not sandals, when she was processed at the Metropolitan Correctional Center the following morning. Her defense, in sum, was that she never possessed any heroin.

bills with serial numbers that had been pre-recorded. Officer Valentine testified that she then broadcast a description of the seller as a female Hispanic about five feet five inches in height, clothed in an over-sized white T-shirt, belt and sandals. Tr. 31. Approximately fifteen minutes later, New York City Police Detective William Fitzpatrick and Sergeant Richard Jennings observed appellant Ortiz in the area where Officer Valentine had made the buy. Acting on Valentine's description, they arrested Ortiz. Fitzpatrick testified that when he and Jennings approached Ortiz, she threw several items to the ground. They recovered six glassine envelopes of "Vega" brand heroin and $39 in cash, none of which was the pre-recorded buy money. About an hour later, Officer Valentine identified Ortiz as the seller in a one-on-one showup at the police station.

Although evidence of Ortiz's 1982 state court conviction for selling a controlled substance was never admitted, its admissibility influenced the conduct of her trial from start to finish. On the eve of trial, her attorney moved in limine for a ruling that the prior conviction was inadmissible under Rule 404(b). The government responded with a letter detailing its argument that the prior conviction would be admissible under Rule 404(b) to rebut a defense of possession without intent to distribute. The government also contended that the conviction should be admissible under Fed.R.Evid. 609 to impeach Ortiz if she testified.

The court did not rule on either issue until the close of the government's case. After hearing argument, Judge Metzner ruled that Ortiz's prior conviction would be admissible under Rule 609 to impeach her if she testified. The court expressly concluded that "the probative value outweighs the prejudice and [the conviction] will be admitted for the purpose of impeachment only." Tr. 86 (emphasis added). Because Ortiz did not testify, she cannot and does not challenge the district court's ruling on this issue. See Luce v. United States, 469 U.S. 38, 43, 105 S.Ct. 460, 464, 83 L.Ed.2d 443 (1984).

The admissibility of the prior conviction under Rule 404(b) to show intent was not resolved quite as definitively. Ortiz's counsel represented to the court that

she did not have the 6 glassines or throw the 6 glassines. That would be her position [if she testified]. It's not a matter of intent. It would not go to the issue of intent with respect to [404(b) ] if that would be her testimony.... I don't believe there is any relevance under [404(b) ] with respect to intent.

Tr. 76-77 (emphasis added). Later, defense counsel repeated that Ortiz "didn't buy the drugs or possess the drugs either with intent to use or intent to distribute." Id. at 82-83 (emphasis added). The district court accordingly rejected the government's contention that the defense had placed intent in issue. Judge Metzner stated, "I don't see how [the prior conviction] comes in on a prior similar act [under Rule 404(b) ] if the defendant's position is [']I didn't have the glassine envelopes; I never purchased them that night. I was there to buy but I didn't get it and I didn't throw the money away. [']" Id. at 85.

Ortiz's counsel nevertheless maintained that he should be able to argue to the jury that possession of six glassine envelopes was as consistent with personal use as with intent to distribute. The court rejected this contention, implicitly on the ground that it was irreconcilable with the theory that Ortiz possessed nothing at all. Under that The district court also suggested another rationale for restricting defense argument on this point. Although one government witness had testified on cross-examination that heroin addicts use up to twenty glassine envelopes of heroin a day, see id. at 62, there was no evidence that Ortiz herself was a heroin user. The court therefore ruled that the defense could not argue that possession of six envelopes was consistent with personal use because of the absence of record evidence that she was a user. See id. at 94, 116-17.

                theory, Judge Metzner said, he assumed that "there is no issue of intent here.  You claim she never had [the glassine envelopes]."  Id. at 87 (emphasis added).  The court warned defense counsel, "if you are going to argue to the jury that even if she did have [the heroin] she didn't intend to sell, then I would stop you right in the middle and tell the jury you were misleading them."    Id.  When defense counsel reiterated that he hoped to argue "that 6 glassine bags is consistent with personal use as well as with intent to distribute," the court replied, "Oh, no.  If that is what you want to do [then the prior conviction] comes in under 404."    Id. at 88
                

These rulings had two results. First, Ortiz did not testify. Second, the defense made a truncated argument in summation that "[t]here is no evidence that 6 glassines, the possession thereof in and of itself makes out intent to distribute and that is one of the elements ... that the government has to prove beyond a reasonable doubt." Id. at 147-48. Defense counsel, apparently mindful of the district court's warning, did not refer to personal use at all. The thrust of the defense closing, consistent with the earlier representations to the court, was that "[t]he person with whom Ms. Valentine had the transaction was not Ms. Ortiz." Id. at 144.

In rebuttal, the government responded to the suggestion that it had not proved intent. The prosecuting Assistant United States Attorney stressed that the record contained ample evidence of intent, including certain details about the heroin recovered at the scene of the arrest that were consistent with drug dealers' practices. See id. at 150-51.

On appeal, Ortiz argues that her conviction should be reversed because the district court's incorrect analysis of Rule 404(b) resulted in an unfair trial.

DISCUSSION

Rule 404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Under the "inclusionary" or "positive" approach to other acts evidence that controls in this Circuit, other acts or crimes are admissible under Rule 404(b) to prove matters other than the defendant's criminal propensity. See United States v. Brennan, 798 F.2d 581, 589 (2d Cir.1986); United States v. Levy, 731 F.2d 997, 1002 (2d Cir.1984).

In a recent decision, Huddleston v. United States, --- U.S. ----, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988), the Supreme Court outlined the test for admission of other acts evidence under Rule 404(b). First, to be admissible the evidence must be introduced for a proper purpose, "such as proof of motive, opportunity, intent," etc. The offered evidence must also be relevant, per Rules 401 and 402, to an issue in the case, and the evidence must...