U.S. v. de Ortiz

• Decision Date: 16 August 1989
• Docket Number: No. 88-1760,88-1760
• Citation: 883 F.2d 515
• Parties: 28 Fed. R. Evid. Serv. 855 UNITED STATES of America, Plaintiff-Appellee, v. Margarita Martinez de ORTIZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 515

883 F.2d 515

28 Fed. R. Evid. Serv. 855

UNITED STATES of America, Plaintiff-Appellee, v. Margarita Martinez de ORTIZ, Defendant-Appellant.

No. 88-1760.

United States Court of Appeals,

Seventh Circuit.

Argued April 17, 1989.

Decided Aug. 16, 1989.

Eric J. Klumb, R. Jeffrey Wagner, Asst. U.S. Attys., John E. Fryatt, U.S. Atty., Milwaukee, Wis., for plaintiff-appellee.

John Landa, Kenosha, Wis., Andrew Mishlove, Milwaukee, Wis., for defendant-appellant.

Before BAUER, Chief Judge, EASTERBROOK, Circuit Judge, and WILL, Senior District Judge. ^*

WILL, Senior District Judge.

Defendant Margarita Martinez de Ortiz was charged in a superseding indictment with conspiracy to distribute cocaine, in violation of 21 U.S.C. Sec. 846 (Count I), and Ortiz was tried separately. After the government presented its case and again after all the evidence was heard, Ortiz moved for a judgment of acquittal, pursuant to Fed.R.Crim.P. 29(a). A ruling on her motions was deferred and never made. Ortiz also moved to exclude the testimony of alleged co-conspirator statements previously made by Linda Cabeza, who did not testify, on the ground that there was not sufficient evidence tying Ortiz to the conspiracy, although she conceded that there was a conspiracy. Judge Curran concluded that the statements were admissible under Fed.R.Evid. 801(d)(2)(E) and denied Ortiz's motion.

possession of cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1) (Count II). Linda Cabeza and Alberto Cabeza were also charged in the indictment as co-conspirators.

The jury found Ortiz guilty of conspiracy but not guilty of possession of cocaine with intent to distribute. She subsequently filed a motion for a judgment of acquittal, arguing, among other things, that her conviction was based on insufficient evidence. Judge Curran denied the motion and sentenced Ortiz to ten years in prison and fined her $5,000. On appeal, she argues that there was insufficient evidence to support her conviction and that the district court erroneously denied her motion to exclude evidence of statements previously made by Linda Cabeza. The government contends that Judge Curran's jury instruction for conspiracy was wrong. We affirm Ortiz's conviction and reject the government's argument with respect to the jury instruction.

BACKGROUND

The government's case was primarily based on the testimony of Kathleen Jaeger, an informant who, along with her boyfriend Mario Stein, was awaiting sentencing on federal cocaine conspiracy charges. She had pled guilty on August 14, 1987 and agreed to cooperate by trying to arrange further sales with Linda Cabeza and Alberto Cabeza, both of whom had allegedly supplied Mario Stein with cocaine between December 1984 and March 1987. Stein lived in Milwaukee and the Cabezas lived in Miami.

In August 1987 Jaeger taped a phone conversation she had with Linda Cabeza during which Cabeza identified three potential sources for cocaine: "Rafael," "Lydia" and "Margarita." After Linda did not succeed in working out an arrangement with Rafael or Lydia, she concentrated on Margarita (Ortiz). Linda told Jaeger that she and Mario Stein had previously obtained good cocaine through Margarita two years earlier and that she was going to contact Margarita to see if Margarita's boyfriend had cocaine. Several days later, Linda told Jaeger that she had made a connection through "the person I told you I was gonna talk to." Linda was in New York or Miami during these conversations.

Linda Cabeza spoke with Jaeger several times after that and told Jaeger that Margarita was coming as the "guarantee for everything." As planned, Jaeger drove to Chicago on October 1, 1987 and picked up Linda Cabeza and Ortiz at O'Hare International Airport and drove to a Chicago motel. Cabeza and Ortiz had travelled by plane from Miami.

Ortiz only speaks Spanish and Jaeger only speaks English. A conversation took place in the car and Linda Cabeza translated for both women. Cabeza told Jaeger that she and Ortiz were tired and wanted to go to a motel and that they were expecting a phone call which could lead to the acquisition of another five to ten kilos of cocaine in Chicago. At the same time, Alberto Cabeza was to be driving eight kilos to Chicago from Miami. Five of those kilos were to be for Jaeger and another three for someone else in Chicago.

After arriving at the motel, Ortiz went to sleep while Linda Cabeza and Jaeger went out for lunch and discussed the deal. When Ortiz awoke, all three had another conversation during which time Linda explained why she was initially unable to secure cocaine from Rafael or Lydia. Linda also told Jaeger that Ortiz had previously given Lydia a kilo of cocaine. Jaeger testified that she was able to hear Ortiz Later that evening, the arrangement was planned. Alberto Cabeza was to arrive in Chicago and the three women would drive to Kenosha, Wisconsin and get a motel room while Alberto would follow with five kilos. Alberto would transfer the cocaine to Jaeger who would sell it quickly, return to the hotel and give the money to Linda, Alberto and Ortiz. A down payment was not needed. Ortiz would fly back to Miami with half the money.

use the words "Lydia" and "kilo," which are the same in English as in Spanish. Later that day, after Ortiz awoke from a second nap, Jaeger asked Linda Cabeza to ask Ortiz whether or not Jaeger could have all eight kilos from Alberto. After speaking with Ortiz, Linda Cabeza told Jaeger that Ortiz thought Jaeger was nice and that she could have all eight kilos.

As planned, Alberto arrived at the Chicago motel on October 1, 1987 at 11:30 p.m. Prior to leaving, Linda Cabeza told Jaeger that she would get five kilos but the other three were going to be put into a safe in the Chicago motel room. Jaeger did not see anyone place cocaine in the safe. During the early morning of October 2nd, Jaeger drove to Kenosha with Ortiz and Linda, without checking out of the Chicago motel. Jaeger left Ortiz and Linda at the Kenosha motel room and met Alberto in a parking lot where she received five kilos. Soon thereafter, Alberto, Linda and Ortiz were arrested. Later that day, FBI agents searched the Chicago motel room and seized three kilos from a safe in the room. There was no testimony that Ortiz ever handled the cocaine or was present when it was displayed.

Ortiz objected to the admission of previous statements made by Linda Cabeza. These statements included the taped telephone conversations between Cabeza and Jaeger as well as Jaeger's testimony regarding Cabeza's alleged translations of Ortiz's statements during several conversations among Ortiz, Cabeza and Jaeger. Ortiz did not contest that a conspiracy existed or that Cabeza's statements were made in furtherance thereof, but argued that she (Ortiz) was not a member of the conspiracy. Judge Curran found that the government established by a preponderance of evidence that Ortiz was a member of the conspiracy and that the statements were admissible under Fed.R.Evid. 801(d)(2)(E).

At the close of the government's case, Ortiz renewed her motion to exclude testimony but this was denied. While Judge Curran admonished the government several times that its case against Ortiz was very weak, he deferred ruling on Ortiz's motion for judgment of acquittal also made at the close of the government's case. Thereafter, Ortiz testified in defense that she was travelling with Linda Cabeza to Chicago and that they along with another friend of Linda Cabeza were going to do some shopping. Ortiz's post-conviction motion for a judgment of acquittal based on insufficient evidence was denied.

ANALYSIS

1. Jury Instruction

The government contends that the district court's conspiracy instruction was erroneous. Although Ortiz was convicted of conspiracy and she has not challenged the instruction on appeal, we need to resolve the issue in light of Ortiz's argument that insufficient evidence supported her conviction and that there exists an inconsistency within the Eastern District of Wisconsin regarding conspiracy instructions which was brought to our attention at oral argument.

Judge Curran instructed the jury as follows:

In order to establish the offense of conspiracy charged in count one of the indictment, the government must prove these elements beyond a reasonable doubt:

1. That the alleged conspiracy existed; and

2. That the defendant knowingly and intentionally became a member of the conspiracy.

A conspiracy is a combination of two or more persons to accomplish an unlawful purpose. A conspiracy may be established In determining whether the alleged conspiracy existed, and whether a particular defendant became a member of the conspiracy, you may consider the actions and statements of all the alleged participants. The agreement may be inferred from all the circumstances and the conduct of all the alleged participants.

even if its purpose was not accomplished.

In determining whether the defendant became a member of the conspiracy, you may consider only the acts and statements of that particular defendant.

To be a member of the conspiracy, the defendant need not join at the beginning or know all the other members or the means by which the purpose was to be accomplished. The government must prove beyond a reasonable doubt that the defendant was aware of the common purpose and was a willing participant.

Record at 866-67 (emphasis added).

According to the government, in light of Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987), the jury should have been instructed that in determining whether or not Ortiz was a member of the conspiracy, in addition to determining whether or not a conspiracy existed, it could consider evidence of acts or statements by all alleged conspirators, not just those by Ortiz. The government's tendered instructions differed from Judge Curran's instructions in that they did not include the following statement, which was...