U.S. v. Miranda-Ortiz

• Decision Date: 12 February 1991
• Docket Number: D,No. 404,MIRANDA-ORTIZ,404
• Citation: 926 F.2d 172
• Parties: UNITED STATES of America, Appellee, v. Alexis, a/k/a "Alexis Pacheco," Defendant-Appellant. ocket 90-1148.
• Court: U.S. Court of Appeals — Second Circuit

Page 172

926 F.2d 172

UNITED STATES of America, Appellee, v. Alexis MIRANDA-ORTIZ, a/k/a "Alexis Pacheco," Defendant-Appellant.

No. 404, Docket 90-1148.

United States Court of Appeals, Second Circuit.

Argued Dec. 14, 1990.

Decided Feb. 12, 1991.

Orin S. Snyder, Asst. U.S. Atty., New York City (Otto G. Obermaier, U.S. Atty., S.D.N.Y., John M. McEnany, Asst. U.S. Atty., New York City, on the brief), for appellee.

Arthur J. Viviani, New York City, for defendant-appellant.

Alexis Miranda-Ortiz, Danbury, Conn., filed a brief, pro se.

Before KEARSE, PIERCE and MINER, Circuit Judges.

KEARSE, Circuit Judge:

Defendant Alexis Miranda-Ortiz ("Ortiz") appeals from a final judgment of the United States District Court for the Southern District of New York, Michael B. Mukasey, Judge, convicting him on one count of conspiracy to distribute and to possess with intent to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. Sec. 846 (1988); and one count of distribution of more than 500 grams of cocaine, in violation of 21 U.S.C. Secs. 812, 841(a)(1), 841(b)(1)(B) (1988); and 18 U.S.C. Sec. 2 (1988). Ortiz was sentenced principally to two concurrent terms of 151 months' imprisonment and a five-year term of supervised release. On appeal, he contends principally (1) that the conspiracy ended with the withdrawal of a key member prior to the time of Ortiz's involvement; (2) that the evidence at trial was insufficient to connect him with the conspiracy charged; and (3) that his sentence was improperly calculated on the basis of quantities of narcotics distributed prior to his entry into the conspiracy. For the reasons below, we affirm the conviction but remand for resentencing.

I. BACKGROUND

In November 1988, Ortiz was arrested after he had delivered a one-kilogram package of cocaine to coconspirator Luis Martinez. Ortiz was eventually charged in a July 1989 superseding indictment with distribution of this cocaine, and with conspiracy to distribute more than five kilograms of cocaine from 1985 through the date of the superseding indictment. The November 1988 events and the background of the alleged conspiracy were established at trial principally through the testimony of Martinez, informant George Zlotkiewicz, and several Drug Enforcement Agency ("DEA") agents. Taken in the light most favorable to the government, the evidence showed the following.

A. The Events

Starting sometime in 1985, Martinez supplied Zlotkiewicz with kilogram quantities of cocaine, which Zlotkiewicz then resold in smaller amounts. By November 29, 1988, Martinez had sold Zlotkiewicz cocaine four or five times, each sale involving approximately one kilogram. Martinez had obtained all of this cocaine from a single supplier, Sergio Gil. In October 1988, unbeknownst to Martinez, Zlotkiewicz sold cocaine to a DEA agent and was arrested. Zlotkiewicz pleaded guilty to a charge of On November 28, 1988, Zlotkiewicz asked Martinez to sell him another kilogram of cocaine. Martinez responded that he would call his source and try to arrange the sale. After finding that Gil was unable to supply the kilogram that day or the next, Martinez called Ortiz.

possession of cocaine with intent to distribute and became a DEA informant.

Martinez had first met Ortiz at a restaurant gathering with mutual friends in the fall of 1987. During that encounter, the two men used cocaine together, and Ortiz told Martinez that if he ever needed drugs, he should call Ortiz. The two exchanged beeper numbers. In November 1988, Martinez had a chance encounter with Ortiz at a movie theater. Ortiz again mentioned that if Martinez "needed anything," he should contact Ortiz. They exchanged beeper numbers again and traded telephone numbers. During these conversations, no quantities were discussed.

On November 29, 1988, having been unable to fill Zlotkiewicz's order from his usual source, Martinez called Ortiz. The two met, and Martinez asked Ortiz if he could supply a kilogram of cocaine that day, explaining that his normal source was unable to supply it. Ortiz asked "if the person that [Martinez] was getting it for was reliable and if [Martinez] had known him." Martinez replied that he had known Zlotkiewicz "for ... four years, approximately, and that [Martinez] never had any problems with [Zlotkiewicz] as far as he always had the money there." Ortiz agreed to try to obtain the cocaine for Martinez. Martinez gave Ortiz the address of Zlotkiewicz's apartment, so that Ortiz could meet Martinez there with the cocaine.

Ortiz called Martinez later that day and confirmed that he would be able to deliver the cocaine. Martinez went to Zlotkiewicz's apartment building at about 7 p.m., buzzed Zlotkiewicz to say that Martinez was in the lobby and that a friend was bringing the drugs, and then waited in the lobby for Ortiz. Thereafter, a DEA agent observed Ortiz approach the building, enter, and give Martinez a plastic bag. Martinez took the bag to Zlotkiewicz's apartment, where he was arrested. The bag contained approximately one kilogram of cocaine. Ortiz was arrested outside the building as he awaited Martinez's return.

B. The Prosecution

Martinez and Ortiz were indicted in December 1988 on one count of distribution and possession of more than 500 grams of cocaine with intent to distribute, and on one count of conspiracy to distribute and possess with intent to distribute more than 500 grams of cocaine. This indictment alleged that the period of the conspiracy was November 1, 1988, to the date of the indictment. A superseding indictment was filed in July 1989, realleging the distribution count and enlarging the alleged scope and duration of the conspiracy. The new indictment charged that the conspiracy had begun in 1985; it asserted that the object of the conspiracy was distribution of more than five kilograms of cocaine; and it added as overt acts the sales by Martinez to Zlotkiewicz from 1985 through 1988.

Martinez pleaded guilty to the distribution count and agreed to cooperate with the government. Ortiz proceeded to trial and was convicted on both counts. He was sentenced as indicated above, and this appeal followed.

II. DISCUSSION

Ortiz makes many arguments on appeal, including the contentions (1) that his conviction must be reversed because (a) the alleged conspiracy ended prior to any involvement by him, and (b) the evidence was insufficient to connect him with the long-lived conspiracy alleged in the superseding indictment; and (2) that the district court should not have calculated Ortiz's sentence on the basis of the quantity of cocaine distributed by the conspiracy prior to his involvement. We have considered all of Ortiz's contentions on appeal. Only those described above warrant discussion; only the sentencing contention has merit.

A. Conspiracy Issues

1. Zlotkiewicz's Withdrawal From the Conspiracy

Ortiz contends that the superseding indictment in fact charged a conspiracy quite The mere withdrawal of one coconspirator from the conspiracy does not terminate the conspiracy when at least two coconspirators remain who have not withdrawn. See, e.g., United States v. Cruz, 797 F.2d 90, 98 (2d Cir.1986) ("although [defendant's] arrest terminated his active participation in the conspiracy, it did not terminate the conspiracy itself"); United States v. Katz, 601 F.2d 66, 68 (2d Cir.1979) (per curiam ); United States v. Panebianco, 543 F.2d 447, 453 (2d Cir.1976), cert. denied, 429 U.S. 1103, 97 S.Ct. 1129, 51 L.Ed.2d 553 (1977). Nor does the fact that the coconspirator who withdrew has become a government informant unbeknownst to the coconspirators prevent the continuation of the conspiracy. Although a person acting as an agent of the government cannot be a coconspirator, see, e.g., United States v. Goldberg, 756 F.2d 949, 958 (2d Cir.), cert. denied, 472 U.S. 1009, 105 S.Ct. 2706, 86 L.Ed.2d 721 (1985); United States v. Tombrello, 666 F.2d 485, 490 n. 3 (11th Cir.), cert. denied, 456 U.S. 994, 102 S.Ct. 2279, 73 L.Ed.2d 1291 (1982); United States v. Chase, 372 F.2d 453, 459 (4th Cir.), cert. denied, 387 U.S. 907, 87 S.Ct. 1688, 18 L.Ed.2d 626 (1967), the presence of a government agent "does not destroy a conspiracy in which at least two other private individuals have agreed to engage in an unlawful venture," United States v. Goldberg, 756 F.2d at 958; see United States v. Elledge, 723 F.2d 864, 866 (11th Cir.1984). Since the essence of any conspiracy is agreement, rather than the success of the venture, see, e.g., United States v. Labat, 905 F.2d 18, 21 (2d Cir.1990), a defendant may be convicted of conspiracy even if the intended substantive crime could not occur because the person he and his coconspirators thought would participate in it was actually an agent of the government, see, e.g., United States v. Goldberg, 756 F.2d at 958; United States v. Rose, 590 F.2d 232, 235 (7th Cir.1978) (fact that defendants' "plan was doomed because they unwittingly chose as their instrumentalities agents of the government is irrelevant to the existence of the conspiracy"), cert. denied, 442 U.S. 929, 99 S.Ct. 2859, 61 L.Ed.2d 297 (1979); United States v. Seelig, 498 F.2d 109, 113 (5th Cir.1974) ("fact that a government informant was to effect the actual distribution of the drug does not extirpate [the defendants'] liability for conspiring to violate the law").

limited in scope, whose members were Martinez, Gil, and Zlotkiewicz, and whose sole objective was the supply of cocaine to Zlotkiewicz for redistribution. The argument is that when Zlotkiewicz was arrested and withdrew from the conspiracy, the conspiracy perforce ended; and since this occurred prior to Ortiz's involvement, Ortiz could not have joined this conspiracy. This argument has no merit.

In the present case, the superseding indictment alleged that from 1985 to July 1989, Ortiz, Martinez, "and others to the Grand Jury unknown" conspired to violate the narcotics laws. The evidence was ample to support the...