U.S. v. Ortiz

• Decision Date: 05 May 1998
• Docket Number: No. 97-1670,97-1670
• Citation: 146 F.3d 25
• Parties: UNITED STATES, Appellee, v. Reynaldo Jeremias ORTIZ, Defendant-Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 25

146 F.3d 25

UNITED STATES, Appellee, v. Reynaldo Jeremias ORTIZ, Defendant-Appellant.

No. 97-1670.

United States Court of Appeals First Circuit.

Heard May 5, 1998.

Decided June 12, 1998.

Rehearing and Suggestion for Rehearing

En Banc Denied July 14, 1998.

Rafael F. Castro-Lang, by appointment of the Court, for appellant.

Antonio R. Bazan, Assistant United States Attorney, with whom Guillermo Gil, United States Attorney, was on brief for appellee.

Before TORRUELLA, Chief Judge, CAMPBELL, Senior Circuit Judge, and STAHL, Circuit Judge.

TORRUELLA, Chief Judge.

Defendant Reynaldo Jeremas Ortiz ("Ortiz") appeals his four-count conviction for the illegal possession of narcotics and a firearm which were seized from his residence in Guayama, Puerto Rico while police executed a warrant for his arrest. Ortiz was sentenced to 240 months of imprisonment and 10 years of supervised release for the first two counts and 60 months of concurrent imprisonment and 3 years of concurrent supervised release for the remaining counts.

Ortiz claims that the district court committed two errors. First, he argues that his lawyer provided ineffective counsel by failing to move to suppress the narcotics and firearm evidence. Second, he asserts that he cannot be convicted of possession with intent to distribute drugs within 1,000 feet of a school simply because he possessed such substances in his residence within such a distance from a public middle school. We conclude that neither point is well taken and thus affirm his conviction.

I. BACKGROUND

On appeal, we view the evidence in the light most favorable to the jury's verdict. See United States v. Rosen, 130 F.3d 5, 6 (1st Cir.1997). We conclude that the jury could have found the following facts.

On June 20, 1996, a Puerto Rico judge found probable cause to believe that Ortiz had engaged in a conspiracy to commit murder and issued a warrant for his arrest. On that same date, agents of the Puerto Rico Department of Justice executed the arrest warrant at Ortiz' parents' residence in Guayama, Puerto Rico, which was located approximately 150 feet from the Genaro Cautino Public Middle School. Ortiz lived in a small house, approximately 10 feet wide by 10 feet long, behind the main residence. The agents knocked on his door and identified themselves as police. When the defendant opened the door, the arrest team physically restrained the suspect on his bed and handcuffed him.

Next to the bed, agents found a small plastic bag containing vials of what was later discovered to be cocaine base, commonly known as crack cocaine. One of the agents searched a dresser, which was to the left hand-side of the bed, and found a pistol and a bag of cocaine in the first drawer. The gun was a nickel-plated Smith and Wesson pistol with 15 rounds of ammunition in the magazine and a bullet in the chamber. Its serial numbers had been removed. The agent also searched a plastic shopping bag on top of the dresser, and discovered additional vials of crack cocaine.

The weapon and narcotics evidence was the basis of a four-count federal indictment against Ortiz. Counts One and Two charged Ortiz with possession with intent to distribute varying amounts of narcotics within 1,000 feet of a public school in violation of 21 U.S.C. §§ 841(a) and 860(a). Counts Three and Four, respectively, charged appellant with the felonious possession of a firearm in violation of 18 U.S.C. § 922(g), and possession of a firearm with an obliterated serial number in violation of 18 U.S.C. § 922(k). He was tried and convicted on all counts. Ortiz appeals.

II. DISCUSSION

A. Ineffective Assistance of Counsel

Ortiz alleges he received ineffective assistance of counsel because his trial lawyer failed to file a motion to suppress the weapon and narcotics evidence despite the defendant's specific request that the attorney do so. We do not ordinarily consider ineffective assistance of counsel claims on direct appeal. See United States v. Martinez-Martinez, 69 F.3d 1215, 1225 (1st Cir.1995). However, "where the critical facts are not genuinely in dispute and the record is sufficiently developed to allow reasoned consideration of an ineffective assistance claim, an appellate court may dispense with the usual praxis and determine the merits of such a contention on direct appeal." United States v. Natanel, 938 F.2d 302, 309 (1st Cir.1991).

Ortiz' case falls within this exception. The record reflects that the appellant, on several occasions, requested that the district court dismiss his counsel and appoint another attorney to represent him due to the defense attorney's failure to file a motion to suppress the narcotics and firearm evidence. In two instances, Ortiz directly addressed the district court regarding this issue. On February 3, 1997, the date of the jury trial, he stated to the court, "I want to be assigned another attorney to represent me.... I have asked for [my lawyer] to file some motions that he has refused to file...." On April 30, 1997, the date set for sentencing, Ortiz again complained of his attorney's failure to pursue what the appellant viewed as his only defense.

Our review of the record shows that, on both occasions, the district court refused to dismiss defense counsel because his attorney had determined that "a motion to suppress would be frivolous, under the present state of the law." Relying substantially on Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), defense counsel determined that the agents had conducted a valid search of Ortiz' premises incident to a lawful arrest. Thus, appellant's attorney made a conscious decision not to file the motion based on his legal research. Neither party suggests that we need to engage in further factfinding. Cf. Natanel, 938 F.2d at 309 (reaching ineffective assistance claim where counsel's alleged omission was straightforward and additional factfinding was not required). Under these circumstances, we find that the record is sufficiently developed to entertain Ortiz' ineffective assistance claim.

The Sixth Amendment right to counsel includes the right to the effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 686-87, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail on his claim, Ortiz must show that his attorney's performance not only was deficient, but also prejudiced his defense. See id. at 687, 104 S.Ct. 2052. We hold that appellant's counsel's conduct was within the "wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. 2052. In applying the performance standard, "we examine what counsel 'knew, or should have known, at the time his tactical choices were made and implemented.' " United States v. Georgacarakos, 988 F.2d 1289, 1298 (1st Cir.1993) (citing Natanel, 938 F.2d at 309). Our analysis, then, turns on whether, in his decision to forego filing the suppression motion, defense counsel's reliance on Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), was so misplaced as to constitute deficient performance.

In Chimel, three California police officers executed an arrest warrant for a burglary suspect, Ted Steven Chimel, at the suspect's home. Over Chimel's objections, the officers searched his entire three-bedroom house, and seized numerous items, which were later admitted into evidence against the defendant. The entire search took approximately 45 minutes to an hour to complete. The Supreme Court reversed Chimel's conviction, holding that the search of the defendant's entire house unreasonably extended beyond the defendant's person and area from which he might have obtained either a weapon or destroyed evidentiary items. See id. at 762-63, 89 S.Ct. 2034. The Chimel court noted, however, that "[t]here is ample justification [ ] for a search of the arrestee's person and the area 'within his immediate control'--construing the phrase to mean the area from which he might gain possession of a weapon or destructible evidence." Id. at 763, 89 S.Ct. 2034.

In the instant case, Ortiz was detained within the confines of a room, which was no larger than 10-feet wide by 10-feet long. In such a small space, items on top of and inside Ortiz' chest of drawers as well as next to his bed were all within the suspect's grab area. Moreover, it is important to note that the agents were executing an arrest warrant for a violent crime, conspiracy to murder. In our view, it was reasonable for the agents to conduct a protective sweep of the room, and Chimel appears to support that conclusion. Thus, appellant's counsel had a legitimate basis, in light of Chimel, for not filing the suppression motion.

We are, of course, addressing an ineffective-assistance-of-counsel claim rather than deciding whether, as a matter of law, Puerto Rico police conducted a valid search incident to a lawful arrest. Our scrutiny of counsel's performance must be "highly deferential." Strickland, 466 U.S. at 689, 104 S.Ct. 2052. We find that counsel's conduct was well within the acceptable range of reasonable professional assistance. The defense attorney decided against filing a motion he reasonably believed would be of no benefit to his client. Accordingly, we rule that Ortiz' ineffective assistance claim is without merit.

B. Schoolyard Statute

Ortiz argues that the trial evidence failed to support his conviction under 21 U.S.C. §§ 841(a)(1) and 860(a) for possession of a controlled substance with intent to distribute within 1,000 feet of a public school. Section 860(a), commonly known as the schoolyard provision of the federal drug laws, provides enhanced penalties for:

Any person who violates section 841(a)(1) or section 856 ... by distributing, possessing with intent to distribute, or manufacturing a controlled substance in or on, or within one thousand feet of, the real property comprising a public or private elementary, vocational, or secondary school....

21 U.S.C. § 860(a). According to Ortiz, the statute...