U.S. v. Ortiz, 89-6099

Citation942 F.2d 903
Decision Date13 September 1991
Docket NumberNo. 89-6099,89-6099
Parties34 Fed. R. Evid. Serv. 504 UNITED STATES of America, Plaintiff-Appellee, v. Maria Del Rosario ORTIZ, Ricardo Garza, Juanita R. Garza, and Ismael Soza, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Roel R. Trevino, Pharr, Tex. and Charles Louis Roberts, El Paso, Tex., for Ortiz and Soza.

Gerald H. Goldstein and Cynthia E. Hujar Orr, Goldstein, Goldstein & Hilley, San Antonio, Tex., for Ricardo Garza.

Chris Flood, Houston, Tex., for Juanita Garza.

Merv Hamburg, Atty., U.S. Dept. of Justice, Crim.Div., Appellate Section, Washington, D.C., and Paula C. Offenhauser, Asst. U.S. Atty., Houston, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Texas.

Before REAVLEY, POLITZ and JOLLY, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Four defendants appeal their convictions for various offenses arising out of a far-flung conspiracy to import and distribute marijuana. Of their five assignments of error, the one about which they most stridently complain is that the district court refused to order a new trial in the face of juror affidavits indicating that not all of the verdicts were unanimous. For the reasons that follow, we affirm.

I

This case poses complex facts, nearly all of which pertain to the ambitious drug smuggling operation underlying this appeal. For clarity and brevity, we recount only some of them, namely those necessary to a resolution of the issues discussed below.

In the mid-1980s, the defendant Ricardo Garza ("R. Garza") entered into a marijuana importation and distribution partnership with one Antonio Franco. Like many such arrangements, theirs called for marijuana to be smuggled from Mexico into Texas and then delivered to northern cities, such as New York, Chicago, St. Louis, and Kansas City. What set this conspiracy apart was its size; to label it vast is to risk understatement. For instance, one of the enterprise's many clients--Roy Dean--purchased from it approximately a ton of marijuana every week. R. Garza himself once boasted that the enterprise handled about ten percent of all marijuana trade in the United States.

The contours of the enterprise were routine enough. In March 1985, R. Garza leased an airport in Hargill, Texas; shortly thereafter, he hired a cadre of free-lance pilots to fly empty planes to Mexico--usually Guadalajara--and to fly marijuana-laden planes back to Hargill. The pilots would then fly their cargo from Hargill to a ranch called the "checkpoint," so named because it was near a border crossing area. Once the marijuana reached the checkpoint ranch, drivers would transport it north in trucks and other vehicles, all replete with secret compartments. The drivers rarely if ever proceeded to their drop-off sites uninterrupted; as a matter of course, they would stop at houses in Houston that the enterprise either owned or rented, where the marijuana would be removed, weighed, rewrapped, and finally reloaded into the vehicles. The drivers would then resume their trip to their respective northern destinations.

Strictly speaking, however, smuggling was not R. Garza's only occupation. While engaged in the drug enterprise, he also operated a barely-if-at-all profitable automobile sales agency--Airport Auto Sales--in McAllen, Texas. Maria Del Rosario Ortiz, the secretary at R. Garza's auto agency, was his girlfriend but not his wife, that privilege being reserved for Juanita Garza ("J. Garza"). 1 As for J. Garza's profession, she too ran a "legitimate" business, purchasing in early 1987 a jewelry store--also in McAllen--with funds largely obtained from R. Garza.

The enterprise used four Houston houses, two of which are of special significance. The first residence, located at 734 Turney Drive, seems to have been the most frequented. There, many if not most of the drug proceeds were stored, drivers would often receive their delivery orders, vehicles were fitted with secret compartments, and customers would occasionally pick up their contraband. The second, located at 5623 Blackjack Lane, was leased in February 1987 by R. Garza and J. Garza. It was at this residence where the marijuana cargos were unpacked, weighed, and then repacked.

In March 1987, the enterprise signed on Robert Greathouse, a driver who later became a government informant. Greathouse was introduced to R. Garza and Ismael Soza--a driver himself--at the Turney residence. Early on, Greathouse was asked only to make trips between the Turney house and the checkpoint ranch, and then only as part of a convoy that included Soza. Later, however, he assumed more responsibility, eventually making runs from the Blackjack home to customers in the north.

Just before his first of these runs, Greathouse met R. Garza, Soza, and a number of other drivers at the Blackjack Lane house. Ortiz was also present; in fact, when the topic of Greathouse's expenses arose, R. Garza asked Ortiz to get $500 from the bedroom, which she readily did. On another occasion, this one at the Turney Drive house, Greathouse saw Ortiz using a money counting machine to count a large amount of cash. According to Greathouse, many of the rooms in the residence were filled with sacks of marijuana; the kitchen, however, was stuffed with green plastic sacks that Greathouse was told contained money.

Greathouse further indicated that Soza played an instrumental role in the enterprise. He was the leader of the drivers and, as such, took charge whenever R. Garza was away. In fact, it was oftentimes Soza rather than R. Garza who gave Greathouse an itinerary and expense money.

As for J. Garza's involvement, Greathouse testified that in March 1987--shortly after purchasing the jewelry store--she appeared at the Turney Drive house carrying jewelry and offered to sell various items to Franco, R. Garza, and other organization members, including Greathouse. Also, Greathouse once saw J. Garza drive off from the Turney Drive house with a suitcase of money.

In early September 1987, law enforcement officers placed a wiretap on the telephones at the La Vista condominium in McAllen shared by R. Garza and Ortiz. When speaking over the phone about drug matters, R. Garza and Ortiz would always use code words: suppliers eager to send marijuana to the enterprise, for instance, would indicate that they wanted to send R. Garza a "family." Through this code, R. Garza arranged for myriad shipments of marijuana to be delivered to the checkpoint ranch. Many times, Ortiz relayed these orders along with other messages to members of the organization.

Later in September 1987, DEA agents searched the Hargill airport in the presence of R. Garza and several enterprise pilots. One such pilot, Robert McLean, was a government informant. Although the agents' search uncovered a bunker underneath the hangar floor that contained 2,611 pounds of marijuana, R. Garza was merely detained, not arrested.

After R. Garza was released, McLean indicated that he planned to leave town immediately and asked R. Garza for his back pay. Unaware that McLean was an informant, R. Garza agreed, made a telephone call, told McLean to go to J. Garza's house--located on Kiwi Street--and told him that she would give him his money. McLean did so, and upon arriving at J. Garza's Kiwi Street residence received from her a paper bag containing $16,200 in cash.

In November 1987 and early January 1988, law enforcement officers executed search warrants for several locations associated with R. Garza's and Franco's enterprise. At the residence on Turney Drive, agents seized, among other things, two trucks equipped with secret compartments, $10,500 in cash, a money counting machine, and several beepers. At J. Garza's Kiwi Street residence, agents found a warranty deed for five acres of land that had been sold to R. Garza, a remitter copy of a cashier's check for $1400 to Paul O'Connell (the man who had leased the airport to R. Garza), a copy of a Mexican cashier's check for $60,000, a key to a Cessna airplane, and $21,851 in cash.

At J. Garza's jewelry store, officers found a rolodex file with the Turney Drive address, a title to one of R. Garza's pickup trucks, the lease and electric bills for service at the Blackjack Lane house, a receipt for a money order used to pay for utility service at another house used by the drug enterprise, business cards identifying both Juanita and her husband as owners of the jewelry store, and accounts records showing that a number of enterprise participants were customers of the store. Other records at the store showed that it had $192,000 in available cash but disbursements of $405,000.

And at R. Garza's auto sales agency in McAllen, officers found records in Ortiz's office reflecting payouts of hundreds of thousands of dollars to drug enterprise members, including Soza.

II

A forty-eight count indictment filed on February 16, 1989, in the United States District Court for the Southern District of Texas charged R. Garza, J. Garza, Ortiz, Soza, and a fifth defendant, Jamie Garza, with violations of federal drug, racketeering, currency transaction reporting, and money laundering laws. The four appellants pleaded not guilty with respect to each charge.

R. Garza was convicted of operating a continuing criminal enterprise, 21 U.S.C. § 848; RICO conspiracy, 18 U.S.C. § 1962(d); a RICO substantive offense, 18 U.S.C. § 1962(c); possession with intent to distribute 239 kilograms of marijuana, 21 U.S.C. § 841(b)(1)(A) and 18 U.S.C. § 2; eight counts of possession with intent to distribute 1000 or more kilograms of marijuana, 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; two counts of using the telephone to facilitate the commission of a felony, 21 U.S.C. § 843(b); five counts of money laundering, 18 U.S.C. § 1956; and transporting 200 kilograms of marijuana aboard an aircraft from Mexico to the United States, 19 U.S.C. § 1590 and 18 U.S.C. § 2. For these offenses, R....

To continue reading

Request your trial
32 cases
  • United States v. Owens
    • United States
    • U.S. District Court — Northern District of Mississippi
    • October 6, 2016
    ...favorable to the verdict, and resolve all inferences and credibility assessments in favor of the verdict. See id.; United States v. Ortiz, 942 F.2d 903, 908 (5th Cir. 1991) (citing United States v. Singh, 922 F.2d 1169, 1173 (5th Cir. 1991)). Based on the foregoing standard, the Court finds......
  • Cooke v. State
    • United States
    • United States State Supreme Court of Delaware
    • July 24, 2014
    ...we will not invalidate a jury's verdict because of a juror's mistaken, though honest, response at voir dire.”); United States v. Ortiz, 942 F.2d 903, 909 (5th Cir.1991) (“Moreover—and much more important—[the juror]'s post-verdict dialogue with the district court suggests that he answered t......
  • State v. Scher
    • United States
    • New Jersey Superior Court – Appellate Division
    • December 23, 1994
    ...McDonough Power Equip. v. Greenwood, 464 U.S. 548, 556, 104 S.Ct. 845, 850, 78 L.Ed.2d 663, 671 (1984); see also United States v. Ortiz, 942 F.2d 903, 909 (5th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 2966, 119 L.Ed.2d 587 (1992). The prosecutor in this case invites us to adopt the......
  • US v. Williams-Davis
    • United States
    • U.S. District Court — District of Columbia
    • April 27, 1993
    ...to be applied is whether there is a "reasonable possibility" that such material could have affected the verdict. See United States v. Ortiz, 942 F.2d 903, 913 (5th Cir.1991), cert. denied, ___ U.S. ___, 112 S.Ct. 2966, 119 L.Ed.2d 587 (1992); United States v. Maree, 934 F.2d 196, 201 (9th C......
  • Request a trial to view additional results
6 books & journal articles
  • Witnesses
    • United States
    • James Publishing Practical Law Books Archive Trial Evidence Foundations - 2016 Contents
    • July 31, 2016
    ...of any jurors during deliberations; and • The testifying juror’s own mental process during deliberations. United States v. Ortiz , 942 F.2d 903 (5th Cir. 1991). NOTE: Fed.R.Evid. 606(b) applies both to trial jurors and to grand jurors to the extent that grand jurors are questioned concernin......
  • Child, spouse & Misc.
    • United States
    • James Publishing Practical Law Books Trial Evidence Foundations Witnesses
    • May 5, 2019
    ...of any jurors during deliberations; and • The testifying juror’s own mental process during deliberations. United States v. Ortiz , 942 F.2d 903 (5th Cir. 1991). NOTE: Fed.R.Evid. 606(b) applies both to trial jurors and to grand jurors to the extent that grand jurors are questioned concernin......
  • Witnesses
    • United States
    • James Publishing Practical Law Books Archive Trial Evidence Foundations - 2017 Contents
    • July 31, 2017
    ...of any jurors during deliberations; and • The testifying juror’s own mental process during deliberations. United States v. Ortiz , 942 F.2d 903 (5th Cir. 1991). NOTE: Fed.R.Evid. 606(b) applies both to trial jurors and to grand jurors to the extent that grand jurors are questioned concernin......
  • Witnesses
    • United States
    • James Publishing Practical Law Books Archive Trial Evidence Foundations - 2018 Contents
    • July 31, 2018
    ...of any jurors during deliberations; and • The testifying juror’s own mental process during deliberations. United States v. Ortiz , 942 F.2d 903 (5th Cir. 1991). NOTE: Fed.R.Evid. 606(b) applies both to trial jurors and to grand jurors to the extent that grand jurors are questioned concernin......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT