U.S. v. Ortiz

• Decision Date: 31 January 2007
• Docket Number: No. 05-4668.,05-4668.
• Citation: 474 F.3d 976
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Tomas ORTIZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

474 F.3d 976

UNITED STATES of America, Plaintiff-Appellee, v. Tomas ORTIZ, Defendant-Appellant.

No. 05-4668.

United States Court of Appeals, Seventh Circuit.

Argued November 8, 2006.

Decided January 31, 2007.

Andrew C. Porter (argued), Margaret Schneider, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Jennifer Bruno (argued), Chicago, IL, for Defendant-Appellant.

Before CUDAHY, KANNE, and SYKES, Circuit Judges.

CUDAHY, Circuit Judge.

Tomas Ortiz was found guilty, as a convicted felon, of possessing of a firearm in violation of 18 U.S.C. § 922(g)(1). He appeals, arguing both that § 922(g)(1) is unconstitutional and that the district court erred by admitting two pieces of evidence at his trial: testimony that Tomas and a government informant had together robbed a drug dealer six years earlier and a videotape showing Tomas preparing marijuana for sale. Because any error was harmless, we affirm.

The evidence that convicted Tomas Ortiz was primarily the testimony of FBI informant William Ortiz and recordings he made under FBI supervision. William and Tomas are both members of the Latin Kings street gang — William was "Inca" or leader of the gang's Whipple and Wabansia chapters — but they share no familial relation. (Nonetheless, due to their identical surnames, we will refer to the pair by their first names.)

In 2003, the FBI offered to get William a reduced sentence on a drug charge if he would help the Bureau obtain evidence against other Latin Kings. William accepted the offer and aided several investigations of Latin Kings of the Whipple, Wabansia and Spaulding chapters. He purchased drugs and weapons from the targets, surreptitiously recorded their acts and conversations and testified against them.

William's first FBI-sponsored interaction with Tomas was a series of failed drug buys in late 1993 and early 1994. William told his handlers that he could purchase drugs or weapons from Tomas. With FBI approval and buy money, he met Tomas on October 19, 2003 and on January 23, 29 and 30, 2004. Each time William intended to purchase crack from Tomas, but each time he returned to his handlers with buy money intact and with no incriminating evidence.

In February, the FBI and William changed tactics and sought to have William obtain a gun from Tomas, who as a convicted felon could not legally possess a gun. They had reason to believe that Tomas had a gun, in fact, that he had two. In a conversation the FBI recorded on January 23, Tomas described a time he tried to confront members of a rival gang, the Maniac Latin Disciples:

Tomas: We came over here and shit. These niggas like, "Man Papo, there's like five cars of Maniacs over here. Yo, what the fuck?" I came out with two thangs. "Where them bitches at." (laughing)

William: Uh huh. They were gone?

Tomas: Yeah, yeah, they was gone. Got a big-ass Ruger. A Ruger . . . a .22 Ruger and a .380.

(Government Ex. 2 at 2.)

The FBI's plan reached fruition on February 11, 2004. That day, William called Tomas three times. FBI Agent James McDonald recorded the third call, in which William asked Tomas, "You let me use one of your toys? To do somethin'?" (Government Ex. 8 at 1.) William later testified that by "toys" he meant "guns" and that "do somethin[g]" meant "rob a drug dealer." Tomas agreed to meet William in twenty minutes and hung up.

FBI Agents outfitted William with audio and video recording equipment, gave him buy money and sent him to Tomas's house in his 1987 conversion van. One set of FBI agents followed William. Another set waited at Tomas's house and recorded from a second vantage point as William entered the house and conversed with Tomas. At one point, the following exchange occurred (bracketed segments are in Spanish, translated by William):

William: Which one you got? Tomas: Uh, the two two.

William: The two. You got, you got, you got a round in it?

Tomas: Huh?

William: You got a round?

Tomas: Yeah.

William: Cool. . . .

Tomas: What is it? One of them thangs?

William: Huh, yeah, probably two.

Tomas: Two what? Bricks?

William: Two bricks.

Tomas: Huh?

William: [They invited me.] I guess I'll give you half, you know. [For loaning it to me, you know.]

Tomas: Don't trip.

William: You know.

Tomas: You know how we do this.

(Government Ex. 10 at 7.)

William later testified that a "brick" was a brick of cocaine, about one kilogram, and that at the time he believed the "two two" was the .22 caliber Ruger Tomas had mentioned on January 23. (R. 71 at 177-78.)

Tomas and William then left the house and got into William's van to drive to North Avenue and Albany, where Tomas said "it[ ]" was at. (Government Ex. 10 at 8.) William drove and Tomas rode in the passenger seat; Tomas's brother followed in a car. One set of FBI agents followed, but the other stayed back. On the way, Tomas and William continued to discuss the weapon. William asked if Tomas had only "one pistol." Tomas responded that he "could probably get another one." (Id.) Tomas said he didn't intend to sell "it" to William but that William would "fall in love with it," and that it "look like it got a silencer on it." (Id. at 9.)

When they arrived at North and Albany, Tomas went into a house and returned about a minute later. (At this time, William's FBI tails left, fearing that they had been spotted as law enforcement.) William testified that Tomas brought back a gun and showed it to him. The gun does not appear on the videotape, but Tomas and William were recorded discussing it in detail:

William: Lemme see it. [Let me see that.] Damn.

Tomas: They look at that, that look like a silencer.

William: Huh?

Tomas: There ain't nothing in the thing. You pull it back here you know . . . [unintelligible]

William: Ah, that's like a German pistol.

Tomas: Yeah. . . . Shit, more will fit in that bitch too.

William: How many shots is it?

Tomas: Like thirteen.

(Id. at 13.)

The FBI taped the entire conversation, during which Tomas continued to discuss the gun. William asked to whom it belonged, to which Tomas responded, "This pistol? This my cousin's shit." (Id. at 14.) Tomas reiterated that his cousin would be unwilling to sell the gun but stated that his cousin "can get us a whole bunch of pistols, dog. He had crates, in the summer we had crates of guns." (Id.)

William dropped Tomas off at the intersection of Division and Homan, where Tomas's brother picked him up. William testified that when Tomas left the car, he put the gun under a newspaper between the passenger's and the driver's seats; this is consistent with the tape, in which Tomas says, "It's under here. . . . It's right under here," just before leaving the car. (Id. at 17.) Then William drove to a prearranged location to rendezvous with his FBI handlers. They searched the car and recovered a .22 caliber Sturm Ruger pistol. The next day, William called Tomas to tell him a cover story, that he had lost the pistol when the planned robbery was foiled by police.

Tomas was charged with violating 18 U.S.C. § 922(g)(1), which makes it "unlawful for any person . . . who has been convicted in any court of, [sic] a crime punishable by imprisonment for a term exceeding one year . . . to . . . possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce." The government presented the recordings, William's testimony and the testimony of several law enforcement agents (including Bureau of Alcohol, Tobacco and Firearms Special Agent Michael Casey, who identified the gun's make and opined that it had crossed state lines in moving from Sturm Ruger's factory in Connecticut to Illinois). Tomas was convicted.

Tomas now appeals on two grounds. First, he argues that Congress lacks power under the Commerce Clause to enact § 922(g)(1). This argument is clearly foreclosed by controlling precedent. See, e.g., United States v. Sidwell, 440 F.3d 865, 870 (7th Cir.), cert. denied, ___ U.S. ___, 127 S.Ct. 137, 166 L.Ed.2d 100 (2006); United States v. Bell, 70 F.3d 495, 498 (7th Cir.1995). Tomas explains that he advances the argument only to preserve it for possible Supreme Court review, and we will discuss it no further.

Second, Tomas argues that his conviction was tainted by the improper admission of two pieces of evidence during the prosecution's redirect examination of William: testimony concerning an earlier drug robbery and a videotape of Tomas preparing marijuana for sale. This evidence allegedly violated the Rule 404(b) ban on using evidence of other crimes to show action in conformity with character and had a prejudicial effect that substantially outweighed its probative value in violation of Rule 403. "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes." Fed.R.Evid. 404(b). In order to offer evidence of past crimes or acts for "other purposes," the prosecution must show that the evidence establishes a matter in issue other than the defendant's propensity to commit the charged crime, that the act is similar enough and sufficiently close in time to be relevant to the matter in issue, that the evidence of the past crime or act is sufficient to support a jury verdict that the crime or act occurred and that the evidence has probative value not substantially outweighed by its prejudicial effect. United States v. Leahy, 464 F.3d 773, 797 (7th Cir.2006), quoting United States v. Anifowoshe, 307 F.3d 643, 646 (7th Cir.2002); United States v. Chaimson, 760 F.2d 798, 804 (7th Cir.1985). We review the district court's application of this test for abuse of discretion. Leahy, 464 F.3d at 797; Anifowoshe, 307 F.3d at 648.

The robbery evidence was presented for a reason other than showing action in conformity with character, namely to show the meaning of the terms in William...