U.S. v. Ortiz, No. CR-97-3008-MWB.

• Court: United States District Courts. 8th Circuit. Northern District of Iowa
• Writing for the Court: Bennett
• Citation: 40 F.Supp.2d 1073
• Parties: UNITED STATES of America, Plaintiff, v. Aurelio J. ORTIZ, Jr., Sarah Ann Kozak, and Ramiro Astello, Defendants.
• Decision Date: 23 March 1999
• Docket Number: No. CR-97-3008-MWB.

40 F.Supp.2d 1073 UNITED STATES of America, Plaintiff,
v.
Aurelio J. ORTIZ, Jr., Sarah Ann Kozak, and Ramiro Astello, Defendants. No. CR-97-3008-MWB. United States District Court, N.D. Iowa, Central Division. March 23, 1999.

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Janet Papenthien, Robert Teig, Assistant United States Attorneys, Sioux City, IA, for plaintiff.

Robert Sikma, Sioux City, IA, Martha McMinn, Sioux City, IA, for Defendant Ortiz.

Stanley Munger, Sioux City, IA, Jennifer Bicknese, Iowa Falls, IA, for Defendant Kozak.

Thomas O'Flaherty, Swisher, Iowa, Donald Fiedler, Omaha, NE, for Defendant Astello.

MEMORANDUM OPINION AND ORDER REGARDING DEFENDANTS' POST-TRIAL MOTIONS

BENNETT, District Judge.

 TABLE OF CONTENTS
                I. BACKGROUND ........................................................... 1076
                II. LEGAL ANALYSIS ...................................................... 1078
                 A. The Motions For Judgment Of Acquittal ............................ 1078
                 1. Standards applicable to motions for judgment of acquittal .... 1078
                 2. Sufficiency of the evidence .................................. 1079
                 B. The Motions For New Trial ........................................ 1081
                 1. Standards applicable to motions for new trial ................ 1082
                 2. Weight of the evidence ....................................... 1083
                 a. Astello ................................................... 1083
                 b. Ortiz and Kozak ........................................... 1083
                III. CONCLUSION ......................................................... 1086
                

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In the early morning hours of June 7, 1997, Gregory Sky Erickson, a fifteen-year old boy from Estherville, Iowa, was brutally shot and murdered — execution style — in the darkness of an abandoned and isolated farmhouse basement in southern Minnesota. Sky was kidnapped from Iowa where he was gagged, bound, blindfolded, savagely beaten, and transported in the trunk of a car to face his horrific death. Sky's senseless murder was triggered by an $800.00 drug debt and the actions of "friends" — some drug-crazed by methamphetamine. These facts are unassailable. However, assigning individual criminal responsibility for Sky's death has proven to be a complex and daunting task — complicated by the dramatically varying degrees of the defendants' involvement and by the sequence of events spanning two days, two Iowa cities, and two states.

Nearly two years have passed since the tragic events that gave rise to this criminal case. Since then, ten defendants — ranging in age from sixteen to twenty-seven — have been charged in this court with various crimes arising from Sky's murder. At the government's request, the federal charges brought against three juvenile defendants were ultimately dismissed. The juveniles were subsequently convicted on state charges — one of the juveniles pled guilty, and the other two were found guilty following jury trials.

The remaining seven young adult defendants were indicted in this court. The government originally sought the rarely invoked federal death penalty against these defendants. However, late in the pre-trial proceedings, the government withdrew its request after the "ring-leader" and most culpable defendant — Luis Lua — pled guilty to the charges against him in exchange for a mandatory life sentence. Of the six remaining defendants, one has fled the country and remains at large. Two others have also pled guilty in this court, and three proceeded to trial. Countless motions and court orders have been filed — indeed, this ruling will be the 703rd filing in this case.

Last July, I presided over a lengthy — and at times emotionally draining — trial of the three remaining defendants. At the trial's conclusion, the jury returned guilty verdicts against all three — Aurelio J. Ortiz, Jr., age 27, Sarah Ann Kozak, age 20, and Ramiro Astello, age 19. The twilight of this case in the trial court requires me to perform one further task: to consider and resolve the post-trial motions for judgment of acquittal and, in the alternative, new trial, brought by Ortiz, Kozak, and Astello. I am acutely aware that after lengthy deliberation, the jury conscientiously selected in this case has rendered its verdict of "guilty." Nevertheless, my duties and obligations are not discharged because the jury has spoken. I must now consider, inter alia, whether upholding the jury's verdict will result in a miscarriage of justice:

"On [a motion for new trial] it is the duty of the judge to set aside the verdict and grant a new trial, if he is of the opinion that the verdict ... will result in a miscarriage of justice.... The exercise of this power is not in derogation of the right of trial by jury but is one of the historic safeguards of that right."

United States v. Logan, 861 F.2d 859, 866 (5th Cir.1988) (Brown, J., dissenting) (quoting Aetna Cas. & Sur. Co. v. Yeatts, 122 F.2d 350, 352-53 (4th Cir.1941)).

I. BACKGROUND

On July 17, 1997, a United States Grand Jury for the Northern District of Iowa returned a three-count indictment charging Aurelio Ortiz, Sarah Ann Kozak, Ramiro Astello — and others — with kidnapping, conspiracy to commit kidnapping, and using or carrying a firearm during the commission of a crime of violence, in violation of 18 U.S.C. §§ 1201(a), 1201(c), and 924(j) respectively. These charges arose from events surrounding the kidnapping and murder of Gregory Sky Erickson ("Sky") in June of 1997. To provide some factual context for the pending motions, the court will set forth the respective theories of the

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case offered by the government and the defendants.

The government's theory of the case is essentially set forth in the indictment: On or about June 5, 1997, Kozak drove Luis Lua, Shawn Knakmuhs, and Benjamin Alden from Estherville, Iowa, to Spencer, Iowa, to find Sky. Upon arriving in Spencer, Lua, Knakmuhs, and Alden confronted Sky about a drug debt Sky owed Lua. The trio received some methamphetamine and a small amount of money from Sky as partial payment. The next day, on or about June 6, 1997, Kozak drove Ortiz and Alden from Estherville, Iowa, to Spencer, Iowa, to an apartment rented by Eric Sebasta and frequented by Sky. Lua and Knakmuhs also traveled from Estherville to the apartment in Spencer, but in a separate vehicle. When this group of individuals gathered at the apartment, Sky was not present. Kozak then drove Alden and another individual to a Spencer golf course to find Sky. Alden informed Sky that Lua was at the apartment and wished to talk to him. Sometime later, after Sky arrived at the apartment, he was taken to a bedroom by Lua, Knakmuhs, and Ortiz. In this bedroom, Sky was confronted about the remaining drug debt he owed Lua, Castillo, and Ortiz, and beaten. Thereafter, Kozak drove Sky, Lua, and Ortiz back to Estherville. Upon arriving in Estherville, Kozak dropped Lua and Sky off at Lua's residence. Later that evening, Lua contacted Astello and directed Astello to come to Lua's residence because Lua had Sky there. Astello drove Lua, Sky, and a juvenile to Fort Defiance State Park where they met and picked up two other juveniles. The group proceeded on to Swan Lake. There, Sky was again beaten, this time by Lua, Astello, and the juveniles. After the beating, Sky was placed in the trunk of Astello's car and driven to an abandoned farmhouse in Minnesota. Upon arriving at the farmhouse, Sky was removed from the trunk and taken to the basement where Lua shot him in the head.

The defendants' theory of the case differs dramatically from the government's. The defendants contend that on June 6, 1997, Sky had the funds to pay the drug debts he owed Lua and Ortiz but that he declined to pay Lua in order to force an in-person meeting with Lua's drug boss — Ricardo Castillo. According to the defendants, Sky's need to have a meeting with Castillo in Estherville stemmed from an agreement he had made during a meeting with his father and a Spencer police officer. During this meeting, which took place on May 30, 1997, Sky agreed to serve as a "confidential informant" for the Spencer police. In this role, Sky was to gather recent information about drug dealers, and to verify that a given drug dealer (such as Castillo) was in possession of a substantial amount of drugs by personally observing the drugs. Sky hoped that the information he gathered could be used as leverage to have the two criminal charges pending against him reduced or dismissed. The defendants also contend that the confrontation that occurred in the Spencer apartment bedroom was just a part of doing business for this group of drug dealers. The defendants argue that Sky knew a confrontation was likely when he went to the apartment, and that he consented to it. Further, the defendants argue that Sky not only consented to go with the group from Spencer to Estherville on that fateful day, but requested to do so. Indeed, according to the defendants, Sky needed to meet with "the man," meaning Ricardo Castillo, to obtain the information necessary in his new role as an undercover drug informant.

Only defendants Ortiz, Kozak, and Astello elected to proceed to trial. A fifteen-day jury trial began in this matter on July 6, 1998. Due to substantial pre-trial publicity, jury selection took approximately four days — nearly eight times longer than jury selection in a typical criminal case in this district. At the close of the government's case-in-chief, all three defendants moved for judgment of acquittal, pursuant to Rule 29 of the Federal Rules of Criminal Procedure, on all three counts raised in the indictment. The court denied Astello's motion, and reserved ruling on the motions

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made by Ortiz and Kozak. At the conclusion of all evidence, the three defendants renewed their Rule 29 motions. Again, the court denied Astello's motion, and reserved ruling on the motions made by Ortiz and Kozak. On July 30, 1998, following nearly one week of deliberations, the...