U.S. v. Ortiz-Loya

• Decision Date: 02 December 1985
• Docket Number: No. 85-1045,ORTIZ-LOY,A,85-1045
• Citation: 777 F.2d 973
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose Salvadorngel Ojeda-Avila and Jesus A. Garcia, Defendant- Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 973

777 F.2d 973

UNITED STATES of America, Plaintiff-Appellee, v. Jose Salvador ORTIZ-LOYA, Angel Ojeda-Avila and Jesus A.

Garcia, Defendant- Appellants.

No. 85-1045.

United States Court of Appeals, Fifth Circuit.

Dec. 2, 1985.

Jesus B. Ochoa, El Paso, Tex., for Ortiz-Loya.

Scott E. Segall, El Paso, Tex., for Garcia.

Pablo Alvarado, El Paso, Tex. (court appointed), for Angel Ojeda-Avila.

Sidney Powell, Michael S. McDonald, Asst. U.S. Attys., San Antonio, Tex., Helen M. Eversberg, U.S. Atty., El Paso, Tex., William J. Landers, Sp. Counsel, Washington, D.C., for plaintiff-appellee.

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

Before GARZA, POLITZ, and ROBERT MADDEN HILL, Circuit Judges.

GARZA, Circuit Judge:

Jose Salvador Ortiz-Loya, Angel Ojeda-Avila and Jesus A. Garcia were charged in a superseding indictment with various counts of conspiracy, attempting to export firearms and ammunition without a license and making false statements in the acquisition of firearms. The government's case rested primarily on the testimony of Eduardo Ortiz-Loya, a resident alien living in El Paso, travelled to Mexico on business prior to May, 1984, and there left his briefcase, which contained his Texas driver's license. Upon returning to El Paso, Ortiz-Loya learned that he had been named to head an anti-narcotics agency investigating drug trafficking in Mexico. Ortiz-Loya was already a federal agent for the Mexican government.

Hernandez. Hernandez, the manager of a licensed firearms dealership in El Paso, Texas, was not prosecuted for his involvement in the case. The salient facts, most of which were highly disputed at trial, are as follows.

Ortiz-Loya testified that the Mexican government did not provide him with weapons and that he told Garcia that he would need a "long weapon" for his new job. According to Garcia, Ortiz-Loya never mentioned that he intended to take any weapons to Mexico. In May of 1984, Garcia took Ortiz-Loya to the Montana Pawn Shop and pawnbroker/gun dealer Hernandez. Ortiz-Loya also testified that guns and jewelry were discussed, but that no order was placed. Hernandez, however, testified that guns were not discussed at this first meeting.

According to Ortiz-Loya, he returned to the pawnshop alone approximately one week later and asked Hernandez about ordering guns and ammunition. Hernandez stated that he could sell Ortiz-Loya the ammunition, but that he would need two persons with Texas driver's licenses to sign for the guns. Ortiz-Loya further testified that he told Hernandez that he wished to take the guns to Mexico and asked Hernandez about exportation requirements. Ortiz-Loya claimed that Hernandez reiterated that only two persons with Texas driver's licenses to co-sign were needed. According to Ortiz-Loya, this "seemed too easy," since he had previously exported non-hazardous items to Mexico and knew that certain export requirements had to be met. Ortiz-Loya stated that he then placed an order for two Colt AR-15 semiautomatic rifles, two Uzi carbines and ammunition; that he gave Hernandez $3,000 in cash; and that he received a receipt for a balance due of $182.95.

Hernandez, on the other hand, testified that, although Ortiz-Loya did ask if such weapons could be ordered, no order was placed during this second visit. According to Hernandez, it was not until some days later, when Ortiz-Loya arrived with Ojeda-Avila, that Ojeda-Avila placed an order for the guns. Hernandez stated that Ojeda-Avila gave him $3,000 and told him to make a layaway ticket in Ortiz-Loya's name in order to guarantee payment of a debt owed to Ortiz-Loya.

Approximately ten days later, Hernandez learned that the two Uzi carbines could not be ordered. Ortiz-Loya testified that after Hernandez called to tell him this, arrangements were made for his son, acquitted co-defendant Ortiz-Gutierrez, to collect the overpayment of approximately $1,000. By contrast, Hernandez claimed that he had informed Ojeda-Avila that two of the guns could not be ordered and that arrangements were made for either Ojeda-Avila or a third person to collect the overpayment. Hernandez further stated that Ortiz-Loya came to the pawn shop to collect the $1,000, but that the pawn shop did not have that much cash. Hernandez agreed that Ortiz-Gutierrez subsequently collected the money.

A few days later, Hernandez informed Ortiz-Loya that the balance of the order had arrived. Hernandez testified that on the morning of June 12, 1984, Ojeda-Avila arrived at the pawnshop with a check, drawn on "Ortiz Motors" (the family used car business), for approximately $500; Hernandez accepted the check and returned approximately $315 to Ojeda-Avila. According to Hernandez, Ojeda-Avila signed only one Alcohol, Tobacco and Firearms (ATF) form, ¹ which indicated that Ojeda- While Hernandez could not recall if Ojeda-Avila was alone, Ortiz-Loya and Ojeda-Avila both testified that Ortiz-Loya was present. Both men also testified that Ortiz-Loya had earlier asked Ojeda-Avila, as a favor, to sign for one of the weapons because Ojeda-Avila had a Texas driver's license. According to Ojeda-Avila, Hernandez knew the gun was being purchased for Ortiz-Loya and twice said that there would be "no problem" in having Ojeda-Avila sign for one of the weapons.

Avila was the transferee or purchaser, because Ojeda-Avila stated that only one weapon was his. Ojeda-Avila did not take any weapon when he left the store.

Later that day, Ortiz-Loya returned to the pawnshop with Ana Nunez. Ortiz-Loya testified that he purchased a .22-caliber pistol and ammunition for Nunez, but that payment was not made at this time. Ortiz-Loya claimed that later that day he and Garcia returned to the pawnshop, where Garcia signed a separate ATF form for the remaining AR-15 rifle. Garcia testified that Ortiz-Loya had asked him to sign for the gun because he had a Texas driver's license. Ortiz-Loya also testified that he handed Hernandez a check, drawn on Ortiz Motors, in the sum of $557.64. According to Ortiz-Loya, this check, which Ortiz-Gutierrez had signed, covered the balance due on the remaining AR-15 and the $374.69 owed on the Nunez pistol and ammunition.

Hernandez, on the other hand, testified that Nunez paid for the .22 caliber pistol and ammunition and that she filled out an ATF form. Hernandez further testified that when Ortiz-Loya arrived with Garcia, Garcia filled out two ATF forms: one for the remaining AR-15, which Ojeda-Avila had purchased, and one for a separate shotgun, which Garcia had purchased for himself. When Ortiz-Loya and Garcia left the pawnshop, Garcia took the shotgun, but left the AR-15 rifle.

All parties agree that on the following day, June 13, 1984, Ortiz-Gutierrez went to the pawnshop and collected the guns and ammunition. According to Hernandez, Ortiz-Gutierrez had said that Ojeda-Avila and Garcia could not leave work and that he was going to collect the merchandise. After Hernandez delivered the items, Ortiz-Gutierrez loaded the weapons and ammunition into the trunk of his car and drove to the family business. At the used car lot, empty soft-drink cartons were placed in the trunk over the guns and ammunition; Ortiz-Loya claimed that the boxes were not placed to conceal the weapons. Ortiz-Loya and Ortiz-Gutierrez then drove to the United States-Mexican border at the "Bridge of the Americas," where the United States Customs Office was located. Ortiz-Loya testified that he intended to get information concerning exportation requirements for the guns and ammunition.

Customs Patrol Officer Santillano, after a phone call from the Customs Office of Investigation, set up a roadblock at the Bridge of the Americas in order to stop Ortiz-Loya's car. Santillano testified that Ortiz-Loya's car was spotted in the center lane and that the car began to back up after Santillano had made eye contact with the driver. Santillano further testified that Ortiz-Loya's car was stopped at a point at which it had not yet irrevocably committed to enter Mexico.

Customs Special Agents Walker and Barela arrested Ortiz-Loya and Ortiz-Gutierrez, inspected the trunk, and removed the guns and ammunition. According to Agent Walker, Ortiz-Loya had committed to enter Mexico before he was stopped. ATF Agent Valdez then questioned Ortiz-Loya. According to Valdez, Ortiz-Loya stated that he was a Mexican federal police officer; that he was taking the firearms to Mexico for police purposes; that he did not need permission to "exportar"--i.e. to take the firearms and ammunition across the border--because he was a Mexican federal agent; and that although he paid for the firearms, two other individuals had signed for them.

By contrast, Ortiz-Loya testified that he neither intended to enter Mexico nor attempted Based on the foregoing testimony, Ortiz-Loya, Ojeda-Avila, and Garcia were convicted of several offenses from which they now appeal. Specifically, Ortiz-Loya appeals his conviction on counts 2 through 8 of unlawfully attempting to export two firearms and approximately 6,000 rounds of ammunition from the United States to Mexico without a license. ² Ojeda-Avila and Garcia appeal their convictions on counts 2 and 3, respectively, of aiding and abetting Ortiz-Loya in the attempted unlawful exportation ³ and their convictions on counts 9 and 10, respectively, of knowingly making false statements to a licensed gun dealer in the acquisition of the firearms. ⁴ Ortiz-Loya also appeals his conviction on counts 9 and 10 of aiding and abetting Ojeda-Avila and Garcia in the unlawful acquisition. ⁵ All defendants appeal their convictions on count 1 of conspiracy in attempting to export firearms and ammunition without a The defendants contend that there is insufficient evidence to support any of the foregoing convictions. Ortiz-Loya and Garcia also argue that the trial court's instructions to the jury were erroneous in two respects. Finally, Garcia asserts that ATF Form 4473 is...